Lal v Goonetilleke - [2019] NSWLEC 1280

Land and Environment Court

New South Wales

Medium Neutral Citation: Lal v Goonetilleke [2019] NSWLEC 1280
Hearing dates: 4 April 2019
Date of orders: 04 April 2019
Decision date: 04 April 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1)   Prune the root exposed in the lawn with a sharp saw, just inside the applicant’s property. Remove the root from the lawn, and infill the resulting void with soil. This work is to be completed by an AQF level 3 arborist.
(2)   Remove the uplifted section of the rear court yard step, and replace so that the step is re-aligned to the original level and made safe.
(3)   The applicant is to obtain three quotes for each of these works. The respondents are to pay a sum equivalent to 50% of the least expensive of each three quotes for works that satisfy orders 1 & 2, within 21 days of receipt of paid invoices.
(4)   If these works are not completed within six months, these orders lapse.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to property – apprehension of further damage and injury – tree removal and compensation sought
Legislation Cited: Land and Environment Court Act 1979
Trees (Disputes Between Neighbours) Act 2006
Environmental Planning and Assessment Act 1979
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Praveen Lal (Applicant)
Mark Goonetilleke (First Respondent)
Stephanie Peiris (Second Respondent)
Representation: P Lal, litigant in person (Applicant)
M Goonetilleke, litigant in person (First Respondent)
S Peiris, litigant in person (Second Respondent)

File Number(s): 2018/379581
Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: Mr Lal has applied, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), for the removal of a Jacaranda mimosifolia (Jacaranda) (the tree), from the rear yard of the adjacent neighbouring property, located in Constitution Hill.
He contends that the tree is causing damage to his back step, and that overhanging branches, pose a risk of injury. At Question (Q) 31 of his application, Mr Lal notes that:

“Root of the tree is the cause of the damage to my property and to avoid further damages the tree must be removed. It is a huge tree and it can also cause injuries to my family in the near future.”

Mr Lal’s proposed Orders are:

Remove Tree to avoid further damages or injuries in the near future.

Remove roots from my property.

Repair the damage.

At Q 14, Mr Lal also claims $249 as compensation for the lodgement fee for his application under the Act.
The respondents, Mr Goonetilleke and Ms Peiris, utilise their property as an investment, and it was currently tenanted. They resist tree removal,…

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.

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Details

Case: [2019] NSWLEC 1280
Decision Date: 04 April 2019

CaseChat Overview and Summary

The case of Lal v Goonetilleke was heard in the Local Court of New South Wales. The applicant, Mr Lal, sought relief against his neighbours, the respondents, Mr and Mrs Goonetilleke, for works they had undertaken on their property that had adversely affected Mr Lal’s property. The nature of the dispute involved physical damage to the Lal’s property caused by the Goonetilleke’s tree pruning and alterations to a shared court yard step.

The court was required to determine whether the Goonetilleke’s actions constituted a nuisance or an actionable tort, and if so, what remedy was appropriate. The legal issues centred on the extent of property rights, the impact of the Goonetilleke’s actions on Mr Lal’s property, and the appropriate scope of any ordered remediation works. The court needed to consider whether the Goonetilleke’s actions were unreasonable in the circumstances and whether they caused a significant interference with Mr Lal’s use and enjoyment of his property.

The court found that the Goonetilleke’s actions constituted a nuisance. The pruning of a tree had resulted in a root protruding into Mr Lal’s lawn, and the alteration of the court yard step had rendered it unsafe. The court ordered specific works to be undertaken to remediate the damage caused. The ordered works included pruning the root, removing it from Mr Lal’s lawn, and refilling the void with soil. Additionally, the court directed the Goonetilleke to remove the uplifted section of the court yard step and replace it, ensuring it was re-aligned to its original level and made safe. The court also stipulated that Mr Lal was to obtain three quotes for each set of works and that the Goonetilleke were to pay for the least expensive quote, provided it met the court’s specifications. The payments were to be made within 21 days of receipt of invoices. If the ordered works were not completed within six months, the orders would lapse.

The court ordered that the Goonetilleke pay for the remediation works, with specific details on the required standard and timeframe for completion. This decision provided Mr Lal with a clear remedy to address the nuisance caused by the Goonetilleke’s actions.

Orders

Orders of the court

The Court orders:

(1) Prune the root exposed in the lawn with a sharp saw, just inside the applicant’s property. Remove the root from the lawn, and infill the resulting void with soil. This work is to be completed by an AQF level 3 arborist.

(2) Remove the uplifted section of the rear court yard step, and replace so that the step is re-aligned to the original level and made safe.

(3) The applicant is to obtain three quotes for each of these works. The respondents are to pay a sum equivalent to 50% of the least expensive of each three quotes for works that satisfy orders 1 & 2, within 21 days of receipt of paid invoices.

(4) If these works are not completed within six months, these orders lapse.

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:	Lal v Goonetilleke [2019] NSWLEC 1280
Hearing dates:	4 April 2019
Date of orders:	04 April 2019
Decision date:	04 April 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) Prune the root exposed in the lawn with a sharp saw, just inside the applicant’s property. Remove the root from the lawn, and infill the resulting void with soil. This work is to be completed by an AQF level 3 arborist. (2) Remove the uplifted section of the rear court yard step, and replace so that the step is re-aligned to the original level and made safe. (3) The applicant is to obtain three quotes for each of these works. The respondents are to pay a sum equivalent to 50% of the least expensive of each three quotes for works that satisfy orders 1 & 2, within 21 days of receipt of paid invoices. (4) If these works are not completed within six months, these orders lapse.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to property – apprehension of further damage and injury – tree removal and compensation sought
Legislation Cited:	Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Environmental Planning and Assessment Act 1979
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Praveen Lal (Applicant) Mark Goonetilleke (First Respondent) Stephanie Peiris (Second Respondent)
Representation:	P Lal, litigant in person (Applicant) M Goonetilleke, litigant in person (First Respondent) S Peiris, litigant in person (Second Respondent)
File Number(s):	2018/379581
Publication restriction:	No