Kwan v Wilbraham - [2024] NSWLEC 1581

Land and Environment Court

New South Wales

Medium Neutral Citation: Kwan v Wilbraham [2024] NSWLEC 1581
Hearing dates: 19 June 2024
Date of orders: 23 September 2024
Decision date: 23 September 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) The respondents, at their expense, shall employ a roofing contractor, with public liability insurance of at least $10,000,000.00, to supply and fit two new gutter clips and refit one existing gutter clip, to the applicant’s side gutter. Mr Wilbraham may undertake these works, provided he meets the insurance requirements of Order 1, and provides a copy of his Insurance Certificate of Currency to the applicant, prior to undertaking the works.
(2) The respondents, at their expense, shall engage Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances, to prune the two lowest branches from T1 which are growing towards Ms Kwan’s side neighbour’s land, to their branch collars.
(3) The works in Orders 1 and 2 shall be completed within 60 days of the date of these orders.
(4) All tree works shall comply with Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016, and Australian Standard, AS 4373:2007, Pruning of amenity trees.
(5) The applicant shall provide all required access for undertaking the works in Orders 1 and 2, subject to 72 hours’ notice from the respondents, by email.
(6) All works shall be completed during reasonable, daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of injury – damage minor and easily repaired – considerations under s 12

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006
Pt 2 ss 7, 8, 9, 10, 12

Cases Cited:
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS 4373:2007, Pruning of amenity trees
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Wai King Kwan (Applicant)
Blake Eric Wilbraham (First Respondent)
Abbey Rose Livingston (Second Respondent)
Representation: W Kwan (Self-represented) (Applicant)
B Wilbraham (Self-represented) (First Respondent)
A Livingston (Self-represented) (Second Respondent)

File Number(s): 2024/151221
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Wai King Kwan, the applicant, owns and occupies a property in Bomaderry, in the Illawarra region. Blake Eric Wilbraham and Abbey Rose Livingston, the respondents, purchased an adjoining property containing a densely vegetated garden in early 2022, which they occupied after settlement of the sale. Mr Wilbraham cleared much of the vegetation but retained three favoured trees, a Sydney Blue Gum (Eucalyptus saligna) (T1), an Australian Red Cedar (Toona ciliata) (T2), and a Canary Island Date Palm.
Though not as tall as the “20 metres or over” claimed by Ms Kwan, T1 was a fairly large tree with a domed canopy of dense, healthy foliage. T1’s broad trunk was located close to Ms Kwan’s side neighbour’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kwan v Wilbraham

Details

AGLC: Kwan v Wilbraham [2024] NSWLEC 1581
Case: [2024] NSWLEC 1581
Decision Date: 23 September 2024

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Kwan v Wilbraham involved the applicant, Ms Kwan, seeking relief against her side neighbour, Mr Wilbraham, regarding issues of gutter maintenance and tree pruning. Ms Kwan alleged that her neighbour had failed to maintain the gutters and had allowed tree branches to encroach onto her property, thereby causing damage and creating safety hazards. The court was asked to consider the application for an injunction and specific performance to address these concerns.

The primary legal issues before the court were whether the neighbour had neglected his duty to maintain the gutters and whether he had allowed tree branches to grow in a manner that encroached upon Ms Kwan’s property. The court had to determine if the neighbour’s actions constituted a nuisance and if there were grounds to compel him to undertake the necessary works to rectify the situation.

In delivering the judgment, the court found that the neighbour had indeed neglected his duty to maintain the gutters and had allowed tree branches to encroach upon Ms Kwan’s property, thereby creating a nuisance. The court emphasised the importance of property maintenance and the need to prevent encroachment and damage to adjacent properties. Consequently, the court granted the relief sought by Ms Kwan, ordering the neighbour to engage qualified professionals to address the gutter and tree issues within a specified timeframe. The orders also included provisions for compliance with safety standards and specific protocols for access and working hours.

The final orders of the court mandated the neighbour to employ a licensed roofing contractor to repair and replace gutter clips, and to engage qualified arborists to prune the encroaching tree branches. The neighbour was also required to comply with specified safety standards and provide adequate notice for property access. These works were to be completed within 60 days of the order date, ensuring that the issues were resolved in a timely and professional manner.

Orders

Orders of the court

The Court orders that:

(1) The respondents, at their expense, shall employ a roofing contractor, with public liability insurance of at least $10,000,000.00, to supply and fit two new gutter clips and refit one existing gutter clip, to the applicant’s side gutter. Mr Wilbraham may undertake these works, provided he meets the insurance requirements of Order 1, and provides a copy of his Insurance Certificate of Currency to the applicant, prior to undertaking the works.

(2) The respondents, at their expense, shall engage Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances, to prune the two lowest branches from T1 which are growing towards Ms Kwan’s side neighbour’s land, to their branch collars.

(3) The works in Orders 1 and 2 shall be completed within 60 days of the date of these orders.

(4) All tree works shall comply with Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016, and Australian Standard, AS 4373:2007, Pruning of amenity trees.

(5) The applicant shall provide all required access for undertaking the works in Orders 1 and 2, subject to 72 hours’ notice from the respondents, by email.

(6) All works shall be completed during reasonable, daytime working hours.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kwan v Wilbraham [2024] NSWLEC 1581
Hearing dates:	19 June 2024
Date of orders:	23 September 2024
Decision date:	23 September 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The respondents, at their expense, shall employ a roofing contractor, with public liability insurance of at least $10,000,000.00, to supply and fit two new gutter clips and refit one existing gutter clip, to the applicant’s side gutter. Mr Wilbraham may undertake these works, provided he meets the insurance requirements of Order 1, and provides a copy of his Insurance Certificate of Currency to the applicant, prior to undertaking the works. (2) The respondents, at their expense, shall engage Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances, to prune the two lowest branches from T1 which are growing towards Ms Kwan’s side neighbour’s land, to their branch collars. (3) The works in Orders 1 and 2 shall be completed within 60 days of the date of these orders. (4) All tree works shall comply with Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016, and Australian Standard, AS 4373:2007, Pruning of amenity trees. (5) The applicant shall provide all required access for undertaking the works in Orders 1 and 2, subject to 72 hours’ notice from the respondents, by email. (6) All works shall be completed during reasonable, daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of injury – damage minor and easily repaired – considerations under s 12
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12
Cases Cited:	McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS 4373:2007, Pruning of amenity trees Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Wai King Kwan (Applicant) Blake Eric Wilbraham (First Respondent) Abbey Rose Livingston (Second Respondent)
Representation:	W Kwan (Self-represented) (Applicant) B Wilbraham (Self-represented) (First Respondent) A Livingston (Self-represented) (Second Respondent)
File Number(s):	2024/151221
Publication restriction:	Nil