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Lovering v Bromage

Lovering v Bromage

Case [2023] NSWLEC 1029 24 January 2023

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Property Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Lovering v Bromage [2023] NSWLEC 1029
Hearing dates: 27 October 2022
Date of orders: 24 January 2023
Decision date: 24 January 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1)   The application is granted, in part.
(2)   Within 45 days of the date of these orders, the Respondent, at her expense, shall remove Tree 1 and Tree 2, including stump grinding to approximately 300mm below ground level.
(3)   Within 45 days of the date of these orders, the Respondent, at her expense, shall prune Tree 3, to remove all dead branches in excess of 20mm diameter at the branch collar, plus one particularly overextended live branch, growing over the properties of the Applicant and the Applicant’s west side neighbour.
(4)   All works in Orders 2 and 3 shall be completed by AQF level 3 arborists with all appropriate insurances, and all pruning shall conform with the guidelines of AS 4373:2007 Pruning of amenity trees.
(5)   All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.
(6)   Upon completion of the works specified in Orders 2 and 3, the Applicant shall pay the Respondent an amount equivalent to 35% of the total cost of the works, within 14 days of receipt of a paid itemised invoice.
(7)   Should access be required into the Applicant’s property to undertake these works, or for removal of refuse, all reasonable access shall be granted, subject to 72 hours written notice to the Applicant’s Agent, and to the Applicant’s tenant.
(8)   All works are to be completed during normal work hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –trees causing damage to roof and retaining wall – are there viable alternatives to tree removal – do benefits from trees exceed the imperative to remove them

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006
ss 6, 7, 10, 12, Pt 2

Cases Cited:
Black v Johnson (No 2) [2007] NSWLEC 513
Gardiner v Bisley [2021] NSWLEC 1176
Hodgson v Woodward [2009] NSWLEC 1283
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592

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

Category: Principal judgment
Parties: Robert Lovering (Applicant)
Beverley Anne Bromage (Respondent)
Representation:
Counsel:
K Knezevic (Agent) (Applicant)
B Bromage (Self-represented) (Respondent)
Solicitors:
BCM Property P/L (Agent)(Applicant)

File Number(s): 2022/246433
Publication restriction: No

Judgment

Background

COMMISSIONER: Mr Lovering (the Applicant) and Ms Bromage (the Respondent) share a boundary between their properties in North Richmond, where the rear of the Applicant’s dwelling adjoins the southern side of the Respondent’s back yard. A tall fence separates the properties.
Originally, both properties were established as single dwellings, but the Applicant subsequently developed his land by building a small second dwelling close and parallel to the rear…

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 Lovering v Bromage

Details

AGLC: Lovering v Bromage [2023] NSWLEC 1029
Case: [2023] NSWLEC 1029
Decision Date: 24 January 2023

CaseChat Overview and Summary

The case of Lovering v Bromage involved a dispute between the Applicant, Mr. Lovering, and the Respondent, Ms. Bromage, concerning the maintenance and removal of trees on Ms. Bromage's property which were affecting Mr. Lovering's adjoining property. The matter was heard in the Local Court of New South Wales. The Applicant sought an order for the removal and pruning of trees, claiming that these trees were causing damage to his property and were a nuisance. The Respondent, on the other hand, argued that the trees were not causing any harm and that the Applicant's claims were unfounded.

The primary legal issue before the court was whether the trees on the Respondent's property constituted a nuisance or posed a risk to the Applicant's property, thereby justifying the orders sought by the Applicant. The court had to determine if the trees' proximity and condition posed a significant risk or inconvenience to the Applicant, and if the proposed works were reasonable and proportionate to the harm caused. The court also needed to consider the costs associated with the proposed works and the appropriate sharing of these costs between the parties.

The court found that the trees in question were indeed causing harm and posed a risk to the Applicant's property, particularly Tree 1 and Tree 2, which needed to be removed, and Tree 3, which required significant pruning. The court granted the application in part, ordering the removal and pruning of the trees in a manner that complied with relevant arboricultural standards and safety guidelines. The court also determined that the Applicant should contribute 35% of the cost of the works, reflecting a shared responsibility for the issue. The Respondent was given a timeframe to complete the works and was required to provide reasonable access to the Applicant's property for this purpose.

The final orders of the court included specific directions for the removal and pruning of the trees, the qualifications of the arborists to perform the work, the method and timing of the works, the sharing of costs between the parties, and the conditions for access to the Applicant's property. The court aimed to balance the rights and responsibilities of both parties while ensuring the safety and property integrity of the Applicant.

Orders

Orders of the court

The Court orders that:

(1) The application is granted, in part.

(2) Within 45 days of the date of these orders, the Respondent, at her expense, shall remove Tree 1 and Tree 2, including stump grinding to approximately 300mm below ground level.

(3) Within 45 days of the date of these orders, the Respondent, at her expense, shall prune Tree 3, to remove all dead branches in excess of 20mm diameter at the branch collar, plus one particularly overextended live branch, growing over the properties of the Applicant and the Applicant’s west side neighbour.

(4) All works in Orders 2 and 3 shall be completed by AQF level 3 arborists with all appropriate insurances, and all pruning shall conform with the guidelines of AS 4373:2007 Pruning of amenity trees.

(5) All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.

(6) Upon completion of the works specified in Orders 2 and 3, the Applicant shall pay the Respondent an amount equivalent to 35% of the total cost of the works, within 14 days of receipt of a paid itemised invoice.

(7) Should access be required into the Applicant’s property to undertake these works, or for removal of refuse, all reasonable access shall be granted, subject to 72 hours written notice to the Applicant’s Agent, and to the Applicant’s tenant.

(8) All works are to be completed during normal work hours.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Lovering v Bromage [2023] NSWLEC 1029

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Gardiner v Bisley
[2021] NSWLEC 1176 Para 3

…ore the Applicant’s dwelling, and the poor design in the placement of the dwelling as close to the trees as appeared possible. In Gardiner v Bisley [2021] NSWLEC 1176, in a similar situation with a mature Eucalyptus pilularis (Blackbutt), the Applicant was ordered to pay the Respondent an amount equivalent to 50% of…
Stevens v Russell
[2016] NSWLEC 1233 Para 27

…In Stevens v Russell & anor [2016] NSWLEC 1233 at [41], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused th…
Hodgson v Woodward
[2009] NSWLEC 1283 Para 10

…eath existing trees may be of a design that fails to take account of existing adjacent trees and thus exacerbate problems (see Hodgson v Woodward [2009] NSWLEC 1283), (subs (i)).…
Robson v Leischke
[2008] NSWLEC 152 Para 16

…The following commentary provides explanation of the ‘reasonable effort required to reach agreement’. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (“ Robson” ), at [194 – 195], Preston CJ notes:…
Yang v Scerri
[2007] NSWLEC 592 Para 20

…without intervention, the trees are likely to cause further roof damage in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the ‘near future’ is deemed to be a period of about 12 months from the date of the determination. Consequently, s 10(2)(a) is engaged.…
Black v Johnson (No 2)
[2007] NSWLEC 513 Para 9

…nsideration, where the structure that is the subject of a damage claim was erected in the vicinity of an existing tree. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whethe…
Vairy v Wyong Shire Council
[2005] HCA 62

…at 176-177, 210, 237-239; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198 [27], 209 [74], 283 [280], 301 [330]-[331]; and Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [28] and 444-445 [66]. Other factors have been suggested (see Perre v Apand Pty Ltd (1999) 198 CLR 180 at 194 [10]-195 [15], 231 [133], 254 [2…
Smibert Group Transport P/L v Clifford
[2005] SADC 80

…; Quinn v Scott [1965] 2 All ER 588 (tree fell onto highway causing collision between two vehicles); Smibert Group Transport Pty Limited v Clifford [2005] SADC 80 (8 July 2005), 241 LSJS 1 (tree fell onto highway and user’s vehicle collided with fallen tree); and Turner v Ridley (1958) 144 A2d 269 (tree fell onto…
Graham Barclay Oysters Pty Ltd v Ryan
[2002] HCA 54

…t 577 [151]; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 472 [39], 482 [72] and [74], 502 [138]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 585 [106]-[107], 612 [193]; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [27], 447 [72], 456 [105], 464 [134] and 466 [144]. A statement…
Woods v Multi-sport Holdings Pty Ltd
[2002] HCA 9

…atedly approved and applied: see, for example, Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577 [151]; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 472 [39], 482 [72] and [74], 502 [138]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 585 [106]-[107], 612 [193]; Vairy v Wyong Shir…
Brodie v Singleton Shire Council
[2001] HCA 29

…[98] This statement of principle has been repeatedly approved and applied: see, for example, Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577 [151]; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 472 [39], 482 [72] and [74], 502 [138]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at…
Perre v Apand Pty Ltd
[1999] HCA 36

…lement, the existence of a duty of care, one unifying principle for determining when a duty of care will arise has not emerged: Perre v Apand Pty Ltd (1999) 198 CLR 180 at 210 [76], 217 [93]. At the minimum, there needs to be reasonable foreseeability: a defendant must know or ought reasonably to know that he or her…
Hill v Van Erp
[1997] HCA 9

…ore the law will impose a duty of care. Proximity had been suggested as a determinant of a duty of care, but it has now been rejected: Hill v Van Erp (1997) 188 CLR 159 at 176-177, 210, 237-239; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198 [27], 209 [74], 283 [280], 301 [330]-[331]; and Vairy v Wyong Shire Council…
Wyong Shire Council v Shirt
[1980] HCA 112

…[97] As to the second element, breach of the duty, Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at [47]-[48] said:…
Wyong Shire Council v Shirt
[1980] HCA 12 Para 47

…[97] As to the second element, breach of the duty, Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at [47]-[48] said:…
[1997] AC 191
[1997] AC 191

…class or character which was reasonably foreseeable as a result of the possible negligent act or omission: Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 322.…

Legislation cited in this decision · 3

Trees (Disputes Between Neighbours) Act 2006 (NSW)
10, 12, 6, 7 5 mentions (from Para 6)
Civil Liability Act 2002 (TAS)
1 mention
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Lovering v Bromage [2023] NSWLEC 1029
Hearing dates:	27 October 2022
Date of orders:	24 January 2023
Decision date:	24 January 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The application is granted, in part. (2) Within 45 days of the date of these orders, the Respondent, at her expense, shall remove Tree 1 and Tree 2, including stump grinding to approximately 300mm below ground level. (3) Within 45 days of the date of these orders, the Respondent, at her expense, shall prune Tree 3, to remove all dead branches in excess of 20mm diameter at the branch collar, plus one particularly overextended live branch, growing over the properties of the Applicant and the Applicant’s west side neighbour. (4) All works in Orders 2 and 3 shall be completed by AQF level 3 arborists with all appropriate insurances, and all pruning shall conform with the guidelines of AS 4373:2007 Pruning of amenity trees. (5) All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. (6) Upon completion of the works specified in Orders 2 and 3, the Applicant shall pay the Respondent an amount equivalent to 35% of the total cost of the works, within 14 days of receipt of a paid itemised invoice. (7) Should access be required into the Applicant’s property to undertake these works, or for removal of refuse, all reasonable access shall be granted, subject to 72 hours written notice to the Applicant’s Agent, and to the Applicant’s tenant. (8) All works are to be completed during normal work hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –trees causing damage to roof and retaining wall – are there viable alternatives to tree removal – do benefits from trees exceed the imperative to remove them
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 ss 6, 7, 10, 12, Pt 2
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 Gardiner v Bisley [2021] NSWLEC 1176 Hodgson v Woodward [2009] NSWLEC 1283 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. AS4373:2007 Pruning of amenity trees.
Category:	Principal judgment
Parties:	Robert Lovering (Applicant) Beverley Anne Bromage (Respondent)
Representation:	Counsel: K Knezevic (Agent) (Applicant) B Bromage (Self-represented) (Respondent) Solicitors: BCM Property P/L (Agent)(Applicant)
File Number(s):	2022/246433
Publication restriction:	No