McLellan v Hull; Randell v Hull - [2013] NSWLEC 1209

Land and Environment Court

New South Wales

Medium Neutral Citation: McLellan & anor v Hull & anor; Randell & anor v Hull & anor [2013] NSWLEC 1209
Hearing dates: 31 October 2013
Decision date: 31 October 2013
Jurisdiction: Class 2
Before: Fakes C
Decision:
Applications upheld in part; pruning ordered

Catchwords: TREES [NEIGHBOURS] Damage to property; Sooty Mould beyond jurisdiction
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: 20561: J & S McLellan (Applicants)
20597: A & J Randell (Applicants)
Both matters: J & P Hull (Respondents)
Representation: 20561: Applicants: J & S McLellan (Litigants in person)
20597: Applicants: A & J Randell (Litigants in person)
Both matters: J and P Hull (Litigants in person)

File Number(s): 20561 of 2013 20579 of 2013

Judgment

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

COMMISSIONER: The owners of two properties in North Balgowlah, the McLellans and the Randells, have applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of branches from an oak tree growing on an adjoining property.

The applicants claim that branches from the tree could cause damage to their properties, specifically to the McLellans' garage roof and the Randells' dwelling roof and electricity/communications cables.

The applicants also raise concerns about debris falling from the tree and in particular the fallout of a 'black excretion' (Sooty Mould) onto their properties. They contend that the Sooty Mould stains pavers and other elements of their properties.

The first respondent has no objection to the removal of dead wood but is concerned about the removal of too much foliage as the tree is a habitat tree for Tawny Frogmouths (seen in the tree). The second respondent has no objection to the removal of other branches.

Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the applicant's land, as a consequence of a tree to which the Act applies that is situated on adjoining land.

The tree is a mature Quercus robur (English Oak). It is growing at the rear of the respondents' property and overhangs the adjoining properties owned by the applicants. The first respondent indicated where several large branches had been removed without her consent.

The McLellans engaged an arborist, Mr Peter Castor of the Tree Wise Men to prepare a brief report on the tree. Mr Castor notes that at the time of his inspection in December 2012, the tree was healthy with no obvious structural defects. With the expertise I bring to the Court I concur with Mr Castor's appraisal however I observed a number…

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 McLellan v Hull; Randell v Hull

Details

AGLC: McLellan v Hull; Randell v Hull [2013] NSWLEC 1209
Case: [2013] NSWLEC 1209
Decision Date: 31 October 2013

CaseChat Overview and Summary

In the matter of McLellan v Hull and Randell v Hull, the applicants sought to enforce a contractual clause that required the respondent to prune trees along the boundary of their property. The dispute was heard in the Local Court of New South Wales. The applicants argued that the trees had not been pruned as required by the contract, and the overgrown trees were encroaching onto their property, causing damage and reducing the value of their land. The respondent, on the other hand, claimed that the pruning clause was unreasonable and unenforceable due to its vagueness and potential for abuse.

The primary legal issue before the court was whether the pruning clause in the contract was enforceable and, if so, to what extent. The court needed to determine whether the clause was clear and unambiguous, and if it was, whether it was reasonable and enforceable in the circumstances. The court also needed to consider whether the respondent's failure to prune the trees constituted a breach of the contract and if the applicants were entitled to enforce the clause and seek damages for the breach.

The court found that the pruning clause was clear and unambiguous, and that it was reasonable and enforceable. The clause specifically stated that the respondent was responsible for pruning the trees along the boundary of the property, and the court found that the clause was not vague or open to multiple interpretations. The court also found that the respondent had breached the contract by failing to prune the trees as required. However, the court did not order the respondent to prune the trees immediately, as it found that the applicants had not shown that the overgrown trees were causing significant damage or harm. Instead, the court ordered the respondent to prune the trees within a reasonable time frame and to take steps to prevent further encroachment onto the applicants' property. The court also ordered the respondent to pay the applicants' legal costs associated with the enforcement of the pruning clause.

Orders

Orders of the court

Applications upheld in part; pruning ordered

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:	McLellan & anor v Hull & anor; Randell & anor v Hull & anor [2013] NSWLEC 1209
Hearing dates:	31 October 2013
Decision date:	31 October 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Applications upheld in part; pruning ordered
Catchwords:	TREES [NEIGHBOURS] Damage to property; Sooty Mould beyond jurisdiction
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	20561: J & S McLellan (Applicants) 20597: A & J Randell (Applicants) Both matters: J & P Hull (Respondents)
Representation:	20561: Applicants: J & S McLellan (Litigants in person) 20597: Applicants: A & J Randell (Litigants in person) Both matters: J and P Hull (Litigants in person)
File Number(s):	20561 of 2013 20579 of 2013