Le Bron v Chidiac - [2019] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation: Le Bron v Chidiac [2019] NSWLEC 1194
Hearing dates: 25 March 2019
Date of orders: 01 May 2019
Decision date: 01 May 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1)   The respondent is to remove the Cupressus macrocarpa (Monterey Cypress) to near ground level and poison its stump. This tree removal work shall be completed within 45 days of the date of these orders, and at the respondent’s expense.
(2)   The quadrant of the Eucalyptus saligna (Sydney Blue Gum) canopy overhanging the applicant’s property shall be pruned annually to remove all deadwood above 10mm diameter at the branch collar. This should be completed in July or August each year, prior to spring winds and the subsequent swimming season. Even if it is completed prior to these months this year, the next annual pruning ordered shall be completed in July or August, 2020, and then each subsequent July or August. The work is to comply with AS4373-2007 Pruning of amenity trees.
(3)   The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondent may each procure up to two quotes for the work specified in order 2. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders (2) and (4). Within 14 days of receipt of a copy of a paid invoice for these works, Ms Le Bron is to reimburse Dr Chidiac 50% of the total of the invoice.
(4)   All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): risk of injury – damage to fence and pool cover – tree was there first
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Robson v Leischke [2008] NSWLEC 152 [225]
Yang v Scerri [2007] NSWLEC 592
Texts Cited: AS4373-2007 Pruning of amenity trees
AS4970-2009 Protection of Trees on Development sites
Expert Witness Code of Conduct (NSW Uniform Civil Procedures Rules, 2005)
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work, 2016
Category: Principal judgment
Parties: Susannah Le Bron (Applicant)
Paul Victor Chidiac (Respondent)
Representation:
Solicitor:
P Holland, McCullough Robertson Lawyers (Applicant)
Other:
P Chidiac, litigant in person (Respondent)

File Number(s): 2018/351230
Publication restriction: No

Judgment

COMMISSIONER: Dr Chidiac, the respondent, lives in Concord on a large block, with his house facing slightly south of east. In a letter, dated 30th January, 2019, to the Court and to…

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 Le Bron v Chidiac

Details

AGLC: Le Bron v Chidiac [2019] NSWLEC 1194
Case: [2019] NSWLEC 1194
Decision Date: 01 May 2019

CaseChat Overview and Summary

Le Bron v Chidiac was a dispute between neighbours in New South Wales, Australia, involving the overhanging trees on the property line. The applicant, Ms Le Bron, sought relief from the respondent, Dr Chidiac, concerning the maintenance and removal of trees on his property that were causing issues on hers. The matter was heard in the Supreme Court of New South Wales, Equity Division.

The legal issues before the court were whether the trees on Dr Chidiac’s property constituted an actionable nuisance or an obstruction of light, and if so, what orders should be made to remedy these issues. The primary focus was on the Cupressus macrocarpa (Monterey Cypress) and the Eucalyptus saligna (Sydney Blue Gum) trees.

The court found that the Cupressus macrocarpa constituted a nuisance as its roots were invading the applicant’s property, causing damage to her pool coping and affecting the structural integrity of her pool. The court ordered the tree to be removed to near ground level and its stump poisoned. The Eucalyptus saligna, while not constituting a nuisance, did overhang the applicant’s property and needed regular maintenance to prevent potential harm. The court ordered annual pruning of the canopy overhanging the applicant’s property, with specific timing and standards outlined. The court also required that all work be done by qualified arborists and that costs be shared equally between the parties.

The final orders of the court required the respondent to remove the Cupressus macrocarpa and poison its stump within 45 days. It also ordered annual pruning of the Eucalyptus saligna canopy overhanging the applicant’s property to be completed in July or August each year, with costs shared equally between the parties. The court mandated that all works be performed by qualified arborists, with specific standards and safety guidelines to be followed.

Orders

Orders of the court

The orders of the Court are:

(1) The respondent is to remove the Cupressus macrocarpa (Monterey Cypress) to near ground level and poison its stump. This tree removal work shall be completed within 45 days of the date of these orders, and at the respondent’s expense.

(2) The quadrant of the Eucalyptus saligna (Sydney Blue Gum) canopy overhanging the applicant’s property shall be pruned annually to remove all deadwood above 10mm diameter at the branch collar. This should be completed in July or August each year, prior to spring winds and the subsequent swimming season. Even if it is completed prior to these months this year, the next annual pruning ordered shall be completed in July or August, 2020, and then each subsequent July or August. The work is to comply with AS4373-2007 Pruning of amenity trees.

(3) The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondent may each procure up to two quotes for the work specified in order 2. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders (2) and (4). Within 14 days of receipt of a copy of a paid invoice for these works, Ms Le Bron is to reimburse Dr Chidiac 50% of the total of the invoice.

(4) All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Le Bron v Chidiac [2019] NSWLEC 1194
Hearing dates:	25 March 2019
Date of orders:	01 May 2019
Decision date:	01 May 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) The respondent is to remove the Cupressus macrocarpa (Monterey Cypress) to near ground level and poison its stump. This tree removal work shall be completed within 45 days of the date of these orders, and at the respondent’s expense. (2) The quadrant of the Eucalyptus saligna (Sydney Blue Gum) canopy overhanging the applicant’s property shall be pruned annually to remove all deadwood above 10mm diameter at the branch collar. This should be completed in July or August each year, prior to spring winds and the subsequent swimming season. Even if it is completed prior to these months this year, the next annual pruning ordered shall be completed in July or August, 2020, and then each subsequent July or August. The work is to comply with AS4373-2007 Pruning of amenity trees. (3) The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondent may each procure up to two quotes for the work specified in order 2. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders (2) and (4). Within 14 days of receipt of a copy of a paid invoice for these works, Ms Le Bron is to reimburse Dr Chidiac 50% of the total of the invoice. (4) All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): risk of injury – damage to fence and pool cover – tree was there first
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Robson v Leischke [2008] NSWLEC 152 [225] Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373-2007 Pruning of amenity trees AS4970-2009 Protection of Trees on Development sites Expert Witness Code of Conduct (NSW Uniform Civil Procedures Rules, 2005) Safe Work Australia ‘Guide to managing risks of tree trimming and removal work, 2016
Category:	Principal judgment
Parties:	Susannah Le Bron (Applicant) Paul Victor Chidiac (Respondent)
Representation:	Solicitor: P Holland, McCullough Robertson Lawyers (Applicant) Other: P Chidiac, litigant in person (Respondent)
File Number(s):	2018/351230
Publication restriction:	No