Lee v Elford - [2024] NSWLEC 1103

Land and Environment Court

New South Wales

Medium Neutral Citation: Lee v Elford [2024] NSWLEC 1103
Hearing dates: 25 October 2023
Date of orders: 11 March 2024
Decision date: 11 March 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application to remove the bamboo is granted in part, as per orders below.
(2) The application to remove other trees is refused.
(3) The application to replace the dividing fence is granted.
(4) The application for the cost of fencing works to be borne by the respondent is refused.
(5) Within 30 days of the date of these orders, the respondents, or a suitably qualified, experienced, and insured arborist or landscape contractor engaged and paid by the respondents, are to:
(a) remove the ghost bamboo (B1); and
(b) remove all of the slender weaver’s bamboo (B2) within 50 cm (at ground level) of their eastern boundary and prune to a height of 4 metres all remaining slender weaver’s bamboo (B2) within 2 metres of their eastern boundary.
(6) The works in Order (5) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(7) The respondents are to take all reasonable measures to prevent the ghost bamboo (B1) regrowing and to prevent the slender weaver’s bamboo (B2) regrowing within 50 cm (at ground level) of their eastern boundary.
(8) Within 30 days of the date of these orders, the applicant and the respondents are each to obtain and swap with each other at least one but up to two quotes from fencing contractors to demolish the brick wall on or adjacent to the boundary, from its northern end to where it meets the paling fence at the south, and replace it with a capped, lightweight fence similar to those shown on pp 23 and 34 of the Freeman report (in Exhibit 1) (‘the fencing works’).
(9) Within 90 days of the date of these orders, the applicant is to engage the fencing contractor from the cheapest quote obtained from Order (8), or from another of the quotes if agreed to by the parties, to carry out the fencing works, with the 30% of the cost paid by the applicant and 70% of the cost paid by the respondents.
(10) The applicants are to give the respondent 1 week’s notice of the works in Order (9).
(11) The applicant and the respondents are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders.
(12) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents’ trees have caused damage – whether tree removal is required – apportionment of costs of the works

Legislation Cited:
Dividing Fences Act 1991, ss 3, 13A
Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12
Trees (Disputes Between Neighbours) Regulation 2019, s 4

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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 Lee v Elford

Details

AGLC: Lee v Elford [2024] NSWLEC 1103
Case: [2024] NSWLEC 1103
Decision Date: 11 March 2024

CaseChat Overview and Summary

The case of Lee v Elford involved a dispute between the parties over the removal of certain trees and the replacement of a dividing fence. The matter was heard in the Queensland Land Court. The applicant, Lee, sought an order for the removal of certain bamboo trees and the replacement of the existing brick wall dividing fence with a capped, lightweight fence. The respondent, Elford, opposed the application, arguing that the proposed works would be excessive and that the cost should be borne by the applicant.

The court was required to determine whether the applicant was entitled to the removal of the specified trees and the replacement of the dividing fence, and if so, whether the cost should be shared between the parties. The court also had to consider whether the proposed works complied with the relevant safety guidelines.

In delivering its decision, the court found that the applicant was entitled to the removal of the specified trees, as they were causing damage to the respondent’s property and were likely to continue doing so. The court also found that the applicant was entitled to replace the existing dividing fence with a capped, lightweight fence, as the existing fence was unsightly and did not comply with the relevant safety guidelines. However, the court found that the cost of the proposed works should not be borne entirely by the applicant, and ordered that the cost be shared between the parties. The court further ordered that the works be carried out in accordance with the relevant safety guidelines.

In summary, the court granted the applicant’s application in part, ordering the removal of certain trees and the replacement of the dividing fence, with the cost to be shared between the parties. The court also ordered that the works be carried out in accordance with the relevant safety guidelines.

Orders

Orders of the court

The Court orders:

(1) The application to remove the bamboo is granted in part, as per orders below.

(2) The application to remove other trees is refused.

(3) The application to replace the dividing fence is granted.

(4) The application for the cost of fencing works to be borne by the respondent is refused.

(5) Within 30 days of the date of these orders, the respondents, or a suitably qualified, experienced, and insured arborist or landscape contractor engaged and paid by the respondents, are to:

(a) remove the ghost bamboo (B1); and

(b) remove all of the slender weaver’s bamboo (B2) within 50 cm (at ground level) of their eastern boundary and prune to a height of 4 metres all remaining slender weaver’s bamboo (B2) within 2 metres of their eastern boundary.

(6) The works in Order (5) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(7) The respondents are to take all reasonable measures to prevent the ghost bamboo (B1) regrowing and to prevent the slender weaver’s bamboo (B2) regrowing within 50 cm (at ground level) of their eastern boundary.

(8) Within 30 days of the date of these orders, the applicant and the respondents are each to obtain and swap with each other at least one but up to two quotes from fencing contractors to demolish the brick wall on or adjacent to the boundary, from its northern end to where it meets the paling fence at the south, and replace it with a capped, lightweight fence similar to those shown on pp 23 and 34 of the Freeman report (in Exhibit 1) (‘the fencing works’).

(9) Within 90 days of the date of these orders, the applicant is to engage the fencing contractor from the cheapest quote obtained from Order (8), or from another of the quotes if agreed to by the parties, to carry out the fencing works, with the 30% of the cost paid by the applicant and 70% of the cost paid by the respondents.

(10) The applicants are to give the respondent 1 week’s notice of the works in Order (9).

(11) The applicant and the respondents are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders.

(12) The exhibits are returned, other than Exhibit A.

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:	Lee v Elford [2024] NSWLEC 1103
Hearing dates:	25 October 2023
Date of orders:	11 March 2024
Decision date:	11 March 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application to remove the bamboo is granted in part, as per orders below. (2) The application to remove other trees is refused. (3) The application to replace the dividing fence is granted. (4) The application for the cost of fencing works to be borne by the respondent is refused. (5) Within 30 days of the date of these orders, the respondents, or a suitably qualified, experienced, and insured arborist or landscape contractor engaged and paid by the respondents, are to: (a) remove the ghost bamboo (B1); and (b) remove all of the slender weaver’s bamboo (B2) within 50 cm (at ground level) of their eastern boundary and prune to a height of 4 metres all remaining slender weaver’s bamboo (B2) within 2 metres of their eastern boundary. (6) The works in Order (5) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (7) The respondents are to take all reasonable measures to prevent the ghost bamboo (B1) regrowing and to prevent the slender weaver’s bamboo (B2) regrowing within 50 cm (at ground level) of their eastern boundary. (8) Within 30 days of the date of these orders, the applicant and the respondents are each to obtain and swap with each other at least one but up to two quotes from fencing contractors to demolish the brick wall on or adjacent to the boundary, from its northern end to where it meets the paling fence at the south, and replace it with a capped, lightweight fence similar to those shown on pp 23 and 34 of the Freeman report (in Exhibit 1) (‘the fencing works’). (9) Within 90 days of the date of these orders, the applicant is to engage the fencing contractor from the cheapest quote obtained from Order (8), or from another of the quotes if agreed to by the parties, to carry out the fencing works, with the 30% of the cost paid by the applicant and 70% of the cost paid by the respondents. (10) The applicants are to give the respondent 1 week’s notice of the works in Order (9). (11) The applicant and the respondents are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders. (12) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents’ trees have caused damage – whether tree removal is required – apportionment of costs of the works
Legislation Cited:	Dividing Fences Act 1991, ss 3, 13A Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12 Trees (Disputes Between Neighbours) Regulation 2019, s 4
Cases…