Lang v Huggett - [2012] NSWLEC 1110

Land and Environment Court

New South Wales

Medium Neutral Citation: Lang v Huggett [2012] NSWLEC 1110
Hearing dates: 27 April 2012
Decision date: 27 April 2012
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)The application to remove the trees is dismissed.
(2)During the month of December every year, beginning 2012, the respondent is to engage and pay for an arborist (minimum AQF Level 3) with all appropriate insurances to conduct a climbing inspection of the Bunya Pine. During that inspection any cones greater than 80mm in any dimension are to be removed. Any limb removal required to access the entire crown for inspection and de-coning is to be undertaken at the same time. These works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(3)The respondent is to give the applicant two weeks' notice of the inspection and works in (2).
(4)The applicant is to provide all access required for the works in (2) during reasonable hours.
(5)The applicant may engage an arborist up to AQF Level 5 to supervise the works in (2), in which case he is to present the respondent with a receipted invoice for the supervision within 14 days of the works.
(6)The respondent is to pay the applicant the amount of the invoice in order (5) within 14 days of receiving it.
(7)If no receipted invoice is received within 14 days of the inspection and de-coning, order (6) lapses.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): application to remove trees dismissed; damage to property; risk of injury; de-coning ordered
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Adamski v Betty [2007] NSWLEC 200
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties:
Brett Lang (Applicant)
Peter Huggett and Elizabeth Huggett (Respondents)
Representation:
Brett Lang (Applicant in person)
Peter Huggett (Respondent in person)

File Number(s): 20095 of 2012

Judgment

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

ACTING COMMISSIONER: Mr Lang, the applicant in this matter, states that, since 2008, three cones have fallen from a Bunya Pine that grows on a neighbouring property. He says the Bunya Pine is likely to drop cones in and around his pool area and that a Bangalow Palm is likely to drop fronds onto an entertaining area, including a seat. Mr Lang seeks orders for the removal of both trees on the grounds that they are likely to cause damage to his property in the near future or injury to a person. If removal is not ordered by the Court he seeks orders for pruning, cabling and annual inspection and de-coning of the Bunya Pine and for regular inspection and de-fronding of the palm.

Both trees grow on the respondent's property near the common boundary. Mr Huggett, the respondent, does not want the trees removed but is willing to undertake regular de-coning and de-fronding to avoid the trees causing damage to his 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 Lang v Huggett

Details

AGLC: Lang v Huggett [2012] NSWLEC 1110
Case: [2012] NSWLEC 1110
Decision Date: 27 April 2012

CaseChat Overview and Summary

Lang v Huggett was a case heard in the Supreme Court of New South Wales, where the primary dispute involved the maintenance of a Bunya Pine tree on a property. The respondent, Huggett, sought to remove the trees, but the applicant, Lang, opposed this. The case required the court to consider whether the trees should be removed and what measures should be taken to maintain the tree if they were not to be removed.

The legal issues at the heart of this case revolved around property rights, environmental considerations, and the balance between the rights of the landowner and the preservation of a significant natural feature. The court needed to determine whether the trees could be removed and, if not, what maintenance measures should be imposed to ensure the health and safety of the tree.

The court found that the trees should not be removed, primarily due to the environmental and aesthetic significance of the Bunya Pine. Instead, the court mandated specific maintenance measures to ensure the tree's health, including annual inspections and de-coning of cones larger than 80mm. The works must adhere to the AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. Additionally, the court stipulated that the respondent must notify the applicant of the inspections and works two weeks in advance, while the applicant must provide necessary access. The court also allowed for the possibility of the applicant to supervise the works if they chose to engage an arborist up to AQF Level 5, with the respondent required to reimburse the applicant for this service.

The final orders included the dismissal of the application to remove the trees and the imposition of detailed maintenance requirements to ensure the tree's health and safety. These measures aimed to balance the rights of the landowner with the need to preserve the significant natural feature on the property.

Orders

Orders of the court

(1)The application to remove the trees is dismissed.

(2)During the month of December every year, beginning 2012, the respondent is to engage and pay for an arborist (minimum AQF Level 3) with all appropriate insurances to conduct a climbing inspection of the Bunya Pine. During that inspection any cones greater than 80mm in any dimension are to be removed. Any limb removal required to access the entire crown for inspection and de-coning is to be undertaken at the same time. These works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3)The respondent is to give the applicant two weeks' notice of the inspection and works in (2).

(4)The applicant is to provide all access required for the works in (2) during reasonable hours.

(5)The applicant may engage an arborist up to AQF Level 5 to supervise the works in (2), in which case he is to present the respondent with a receipted invoice for the supervision within 14 days of the works.

(6)The respondent is to pay the applicant the amount of the invoice in order (5) within 14 days of receiving it.

(7)If no receipted invoice is received within 14 days of the inspection and de-coning, order (6) lapses.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lang v Huggett [2012] NSWLEC 1110
Hearing dates:	27 April 2012
Decision date:	27 April 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)The application to remove the trees is dismissed. (2)During the month of December every year, beginning 2012, the respondent is to engage and pay for an arborist (minimum AQF Level 3) with all appropriate insurances to conduct a climbing inspection of the Bunya Pine. During that inspection any cones greater than 80mm in any dimension are to be removed. Any limb removal required to access the entire crown for inspection and de-coning is to be undertaken at the same time. These works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3)The respondent is to give the applicant two weeks' notice of the inspection and works in (2). (4)The applicant is to provide all access required for the works in (2) during reasonable hours. (5)The applicant may engage an arborist up to AQF Level 5 to supervise the works in (2), in which case he is to present the respondent with a receipted invoice for the supervision within 14 days of the works. (6)The respondent is to pay the applicant the amount of the invoice in order (5) within 14 days of receiving it. (7)If no receipted invoice is received within 14 days of the inspection and de-coning, order (6) lapses.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): application to remove trees dismissed; damage to property; risk of injury; de-coning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Adamski v Betty [2007] NSWLEC 200 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Brett Lang (Applicant) Peter Huggett and Elizabeth Huggett (Respondents)
Representation:	Brett Lang (Applicant in person) Peter Huggett (Respondent in person)
File Number(s):	20095 of 2012