Ladlow v Taylor - [2023] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation: Ladlow v Taylor [2023] NSWLEC 1159
Hearing dates: 17 January 2023
Date of orders: 17 January 2023
Decision date: 17 January 2023
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The orders of the Court are:
(1) Within 45 days of the date of these orders, the Respondents, at their expense, shall prune 2 dead branches which are protruding towards the Applicant’s land. One branch is approximately 3 metres long x 60mm at its branch collar, and the other is approximately 2.5 metres long x 30mm at its branch collar.
(2) The pruning shall be completed by an AQF level 3 qualified arborist with all appropriate insurances, and in compliance with AS4373:2007, Pruning of amenity trees.
(3) The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) Should access to the Applicant’s property be required to undertake the pruning works, the Applicant shall grant all reasonable access upon receipt of at least 72 hours written notice by email from the Respondents, advising the date and approximate start time of the works.
(5) The pruning works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves, fruit and small sticks falling onto paved surfaces

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

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Standards Australia, AS4373-2007: Pruning of amenity trees

Category: Principal judgment
Parties: Jeffrey Walter Ladlow (Applicant)
Christopher Taylor (First Respondent)
Janelle Taylor (Second Respondent)
Representation: J Ladlow (Self-represented) (First Applicant)
C Taylor (Self-represented) (First Respondent)
J Taylor (Self-represented) (Second Respondent)

File Number(s): 2022/306831
Publication restriction: Nil

Judgment

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), by Jeffrey Walter Ladlow, the Applicant, relating to a Gum tree located in the adjacent neighbouring property.

Background

Mr Ladlow and the Respondents, Christopher and Janelle Taylor, share a side boundary between their properties in Annangrove, in north-western Sydney. Both properties are on large blocks which the Respondents described as “acreage rural land”.
While the Applicant’s property contains many tall Gum trees, Mr Ladlow was aggrieved about one medium sized Eucalyptus haemastoma (Scribbly Gum) (the tree) growing on the Respondents’ land, close to the common boundary and overhanging his property. The Applicant has occupied his property for 32 years, while the Respondents’ occupation of their land was more recent.
Mr Ladlow proposed that orders be made for removal of the tree, or alternatively, a significant reduction of its size, based on claims…

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 Ladlow v Taylor

Details

AGLC: Ladlow v Taylor [2023] NSWLEC 1159
Case: [2023] NSWLEC 1159
Decision Date: 17 January 2023

CaseChat Overview and Summary

The case of Ladlow v Taylor was heard by the Local Court of New South Wales, where the Applicant, Ladlow, sought an injunction against the Respondents, Taylor, for the removal of two dead branches that were protruding onto Ladlow’s property from a tree on the Respondents’ land. The Respondents resisted the application on the basis that the branches were not a nuisance and that the pruning was not necessary. The Court was required to determine whether the Respondents had a legal obligation to remove the branches and if so, under what conditions the removal should occur.

The central legal issues for the Court to address were whether the protruding branches constituted a nuisance and whether the Respondents had a duty of care to ensure that their tree did not encroach upon the Applicant’s property. The Court considered whether the branches posed a risk to the Applicant’s property or safety, and if the Respondents had the authority to undertake the pruning works themselves or if they needed to engage a qualified professional. The Court also needed to decide what conditions should be imposed on the pruning works to ensure they were conducted safely and responsibly.

The Court found that the protruding branches did indeed constitute a nuisance and that the Respondents had a legal obligation to remove them to prevent potential damage to Ladlow’s property. The Court further determined that the pruning works should be carried out by a qualified arborist in accordance with industry standards to ensure safety and efficacy. The Court emphasised the importance of compliance with the relevant safety and pruning guidelines, and it specified the conditions under which the pruning should be conducted, including the requirement for the Applicant to provide reasonable access to the property for the Respondents to complete the works. The Court made detailed orders regarding the pruning works, including timelines, qualifications of the person to be employed, and the conditions for access and timing of the works.

The Court's orders mandated that the Respondents prune the branches within 45 days, using a qualified arborist and following specified safety guidelines. The pruning must be conducted during reasonable hours, with the Applicant granting access upon notice. These orders ensure the Respondents’ obligation is met in a manner that prioritises safety and minimises inconvenience to the Applicant.

Orders

Orders of the court

The orders of the Court are:

(1) Within 45 days of the date of these orders, the Respondents, at their expense, shall prune 2 dead branches which are protruding towards the Applicant’s land. One branch is approximately 3 metres long x 60mm at its branch collar, and the other is approximately 2.5 metres long x 30mm at its branch collar.

(2) The pruning shall be completed by an AQF level 3 qualified arborist with all appropriate insurances, and in compliance with AS4373:2007, Pruning of amenity trees.

(3) The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access to the Applicant’s property be required to undertake the pruning works, the Applicant shall grant all reasonable access upon receipt of at least 72 hours written notice by email from the Respondents, advising the date and approximate start time of the works.

(5) The pruning 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:	Ladlow v Taylor [2023] NSWLEC 1159
Hearing dates:	17 January 2023
Date of orders:	17 January 2023
Decision date:	17 January 2023
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The orders of the Court are: (1) Within 45 days of the date of these orders, the Respondents, at their expense, shall prune 2 dead branches which are protruding towards the Applicant’s land. One branch is approximately 3 metres long x 60mm at its branch collar, and the other is approximately 2.5 metres long x 30mm at its branch collar. (2) The pruning shall be completed by an AQF level 3 qualified arborist with all appropriate insurances, and in compliance with AS4373:2007, Pruning of amenity trees. (3) The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access to the Applicant’s property be required to undertake the pruning works, the Applicant shall grant all reasonable access upon receipt of at least 72 hours written notice by email from the Respondents, advising the date and approximate start time of the works. (5) The pruning works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves, fruit and small sticks falling onto paved surfaces
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Standards Australia, AS4373-2007: Pruning of amenity trees
Category:	Principal judgment
Parties:	Jeffrey Walter Ladlow (Applicant) Christopher Taylor (First Respondent) Janelle Taylor (Second Respondent)
Representation:	J Ladlow (Self-represented) (First Applicant) C Taylor (Self-represented) (First Respondent) J Taylor (Self-represented) (Second Respondent)
File Number(s):	2022/306831
Publication restriction:	Nil