Mahadik v Jones - [2024] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation: Mahadik v Jones [2024] NSWLEC 1411
Hearing dates: 11 March 2024 and 22 May 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) Lynn Jones is joined as the second respondent.
(2) The application is granted to the extent of the following orders.
(3) The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:
(a) prune the tree to remove all deadwood greater than 40 mm in diameter;
(b) prune the tree to reduce branches over the applicant’s property as shown in photos in Annexure A; and
(c) prune other branches as the arborist sees fit for hazard reduction, removing no more than 20% of total live crown mass.
(4) The works in Order (3) are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(5) The respondents are to give the applicant 2 days notice of the works in Order (3).
(6) The applicant is to allow all access required for completion of the works in Order (3) during reasonable hours of the day.
(7) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – tree branches have damaged a roof – risk of damage or injury – whether tree removal is required – orders for pruning

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 9, 10, 12
Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261
Hinde v Anderson [2009] NSWLEC 1148
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Australian Standard, AS4373-2007 ‘Pruning of amenity trees’
Campbelltown (Sustainable City) Development Control Plan 2015
Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category: Principal judgment
Parties: Mahesh Mahadik (Applicant)
Carol Jones (First Respondent)
Lynn Jones (Second Respondent)
Representation:
11 March hearing:

Counsel
M Mahadik (Self-represented) (Applicant)
P Duffy (Solicitor) (Respondents)

Solicitors
Duffy Law Group (Respondents)

22 May hearing:
Counsel
M Mahadik (Self-represented) (Applicant)
C Jones (Self-represented) (First Respondent)
L Jones (Self-represented) (Second Respondent)

File Number(s): 2024/22893
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Mahesh Mahadik (the applicant) and Carol and Lynn Jones (the respondents) are neighbours in Ingleburn. The Joneses have lived at 23 Renault Place since building their dwelling in 1987 on the vacant lot they bought a year earlier. A mature grey ironbark (Eucalyptus paniculata) (the tree) stands in their yard next to their eastern boundary, as it did when they purchased their property. Until 2012, the adjoining property to their east (21A Renault Place) was vacant. Mr Mahadik…

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 Mahadik v Jones

Details

AGLC: Mahadik v Jones [2024] NSWLEC 1411
Case: [2024] NSWLEC 1411
Decision Date: 19 July 2024

CaseChat Overview and Summary

Mahadik v Jones was a case brought before the Local Court of New South Wales. The applicant, Mahadik, sought relief from the respondents, including the local council and the property owner, Jones, regarding the maintenance of a tree on the respondent’s property that was causing issues for Mahadik’s property. The crux of the dispute involved the removal of deadwood and pruning of branches that extended over Mahadik’s property, which were claimed to pose a risk to Mahadik’s property and safety.

The court was tasked with determining whether the respondents had a legal obligation to prune the tree in a manner that alleviated the risks posed by the tree to Mahadik’s property. Additionally, the court had to consider whether the pruning should comply with specific standards and whether the respondents were required to notify the applicant of the works and allow access to Mahadik’s property for the completion of the works.

The court found that the respondents did have a responsibility to ensure that the tree did not pose a risk to neighbouring properties, and that this included taking steps to prune the tree in accordance with industry standards. The court determined that the works should be carried out by a qualified arborist and that the respondents were required to give notice to Mahadik and allow access for the completion of the works. The court concluded that the application should be granted to the extent specified in the orders, which included detailed requirements for the pruning and the standards to be followed.

The final orders of the court mandated the engagement of a qualified arborist to prune the tree, gave specific instructions on the scope of the works, and set out the timeframes and standards to be adhered to. The court also stipulated that the respondents must provide notice of the works and that Mahadik must allow necessary access. The exhibits were to be returned, except for one which was retained by the court.

Orders

Orders of the court

The Court orders:

(1) Lynn Jones is joined as the second respondent.

(2) The application is granted to the extent of the following orders.

(3) The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

(a) prune the tree to remove all deadwood greater than 40 mm in diameter;

(b) prune the tree to reduce branches over the applicant’s property as shown in photos in Annexure A; and

(c) prune other branches as the arborist sees fit for hazard reduction, removing no more than 20% of total live crown mass.

(4) The works in Order (3) are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(5) The respondents are to give the applicant 2 days notice of the works in Order (3).

(6) The applicant is to allow all access required for completion of the works in Order (3) during reasonable hours of the day.

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

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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Medium Neutral Citation:	Mahadik v Jones [2024] NSWLEC 1411
Hearing dates:	11 March 2024 and 22 May 2024
Date of orders:	19 July 2024
Decision date:	19 July 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) Lynn Jones is joined as the second respondent. (2) The application is granted to the extent of the following orders. (3) The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders: (a) prune the tree to remove all deadwood greater than 40 mm in diameter; (b) prune the tree to reduce branches over the applicant’s property as shown in photos in Annexure A; and (c) prune other branches as the arborist sees fit for hazard reduction, removing no more than 20% of total live crown mass. (4) The works in Order (3) are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (5) The respondents are to give the applicant 2 days notice of the works in Order (3). (6) The applicant is to allow all access required for completion of the works in Order (3) during reasonable hours of the day. (7) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – tree branches have damaged a roof – risk of damage or injury – whether tree removal is required – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 9, 10, 12 Uniform Civil Procedure Rules 2005, Sch 7
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261 Hinde v Anderson [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Australian Standard, AS4373-2007 ‘Pruning of amenity trees’ Campbelltown (Sustainable City) Development Control Plan 2015 Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)
Category:	Principal judgment
Parties:	Mahesh Mahadik (Applicant) Carol Jones (First Respondent) Lynn Jones (Second Respondent)
Representation:	11 March hearing: Counsel M Mahadik (Self-represented) (Applicant) P Duffy (Solicitor) (Respondents) Solicitors Duffy Law Group (Respondents) 22 May hearing: Counsel M Mahadik (Self-represented) (Applicant) C Jones (Self-represented) (First Respondent) L Jones (Self-represented) (Second Respondent)
File Number(s):	2024/22893
Publication restriction:	Nil