Mordaunt v Reynolds - [2023] NSWLEC 1244

Land and Environment Court

New South Wales

Medium Neutral Citation: Mordaunt v Reynolds [2023] NSWLEC 1244
Hearing dates: 1 February 2023
Date of orders: 1 February 2023
Decision date: 01 February 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) Within 120 days of the date of these orders, the respondents, at their expense, shall remove the Eucalyptus mollucana at the rear of their property to near ground level. The stump shall not be poisoned but may be stump ground.
(2) The tree removal works shall be completed by AQF level 3 qualified arborists who hold all appropriate insurances.
(3) The tree removal works shall be completed in compliance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) Should access be required into the applicant’s property to complete the works or clear up refuse, the applicant shall provide all reasonable access upon receipt of at least 72 hours’ notice by email from the respondents, advising the date and approximate start time of the tree removal works. A copy of the contracted arborist’s insurance Certificates of Currency shall be attached to the email.
(5) All works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to deck roof and boundary wall – apprehension of further damage, and of injury

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes between Neighbours) Act 2006, ss 7, 8, 9, 10(1)(a), 10(2), 12

Cases Cited:
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4790:2009, Protection of trees on development sites
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category: Principal judgment
Parties: Gweneth Mordaunt (Applicant)
Danielle Reynolds (First Respondent)
Michael Reynolds (Second Respondent)
Representation: G Mordaunt (Self-represented) (Applicant)
M Reynolds (Self-represented) (Respondents)

File Number(s): 22/280884
Publication restriction: Nil

Judgment

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

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Ms Gweneth Mordaunt (the applicant). It relates to a Eucalyptus mollucana (Grey Box) (the tree) located close to the rear boundary of an adjacent neighbouring property in South Penrith, owned by Danielle and Michael Reynolds (the respondents).
The applicant’s property is located to the north of the respondents’ land. The parties’ properties share a rear boundary and are accessed from different streets. The applicant occupied her property in 2013, where she resides with her husband. Until recently, a dwelling on the respondents’ land had been leased to a tenant but had since been demolished.
In her application, Ms Mordaunt noted that in 2017, she had verbally advised Mr Reynolds that branches, especially deadwood, regularly fell from the tree into her backyard, thus presenting a risk of injury to her family, but the respondents…

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 Mordaunt v Reynolds

Details

AGLC: Mordaunt v Reynolds [2023] NSWLEC 1244
Case: [2023] NSWLEC 1244
Decision Date: 01 February 2023

CaseChat Overview and Summary

Mordaunt v Reynolds is a case before the Federal Circuit and Family Court of Australia that concerns a dispute between neighbours over a tree overhanging from the respondents’ property onto the applicant’s property. The applicant sought relief for the removal of a large Eucalyptus mollucana tree that is located at the rear of the respondents’ property and is causing damage to the applicant’s property. The applicant alleged that the tree has caused significant damage to their property and poses a risk of further damage, and sought an order for the removal of the tree. The respondents opposed the application, arguing that the tree was not their responsibility and that the applicant had not provided sufficient evidence of the damage caused by the tree.

The primary legal issue before the court was whether the respondents were responsible for the tree and its overhanging branches, and if so, whether the applicant was entitled to an order for its removal. The court was required to consider the relevant legislation, common law principles, and any relevant case law. The court also needed to consider the appropriate terms of any order for the removal of the tree, including the qualifications of the arborists who would carry out the work, the timing and method of the removal, and any requirements for access to the applicant’s property.

In reaching its decision, the court found that the respondents were indeed responsible for the tree and its overhanging branches, as it was growing on their property. The court accepted that the tree had caused damage to the applicant’s property and that there was a risk of further damage. The court also found that the applicant had provided sufficient evidence to support their claims. The court then went on to consider the appropriate terms of any order for the removal of the tree. The court ordered that the tree be removed by qualified arborists in accordance with industry standards, and that the removal works be carried out during reasonable hours and with appropriate notice to the applicant. The court also ordered that the stump of the tree not be poisoned, but may be ground.

The court’s orders provide a practical and proportionate solution to the dispute between the parties. The orders ensure that the tree is removed in a safe and professional manner, while also minimising any disruption to the applicant’s property. The orders also provide for reasonable access to the applicant’s property, and require the respondents to give appropriate notice of the removal works. Overall, the court’s orders provide a fair and balanced resolution to the dispute between the parties.

Orders

Orders of the court

The Court orders that:

(1) Within 120 days of the date of these orders, the respondents, at their expense, shall remove the Eucalyptus mollucana at the rear of their property to near ground level. The stump shall not be poisoned but may be stump ground.

(2) The tree removal works shall be completed by AQF level 3 qualified arborists who hold all appropriate insurances.

(3) The tree removal works shall be completed in compliance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access be required into the applicant’s property to complete the works or clear up refuse, the applicant shall provide all reasonable access upon receipt of at least 72 hours’ notice by email from the respondents, advising the date and approximate start time of the tree removal works. A copy of the contracted arborist’s insurance Certificates of Currency shall be attached to the email.

(5) All works shall be completed during reasonable daytime 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mordaunt v Reynolds [2023] NSWLEC 1244
Hearing dates:	1 February 2023
Date of orders:	1 February 2023
Decision date:	01 February 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 120 days of the date of these orders, the respondents, at their expense, shall remove the Eucalyptus mollucana at the rear of their property to near ground level. The stump shall not be poisoned but may be stump ground. (2) The tree removal works shall be completed by AQF level 3 qualified arborists who hold all appropriate insurances. (3) The tree removal works shall be completed in compliance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access be required into the applicant’s property to complete the works or clear up refuse, the applicant shall provide all reasonable access upon receipt of at least 72 hours’ notice by email from the respondents, advising the date and approximate start time of the tree removal works. A copy of the contracted arborist’s insurance Certificates of Currency shall be attached to the email. (5) All works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to deck roof and boundary wall – apprehension of further damage, and of injury
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes between Neighbours) Act 2006, ss 7, 8, 9, 10(1)(a), 10(2), 12
Cases Cited:	McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4790:2009, Protection of trees on development sites Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016
Category:	Principal judgment
Parties:	Gweneth Mordaunt (Applicant) Danielle Reynolds (First Respondent) Michael Reynolds (Second Respondent)
Representation:	G Mordaunt (Self-represented) (Applicant) M Reynolds (Self-represented) (Respondents)
File Number(s):	22/280884
Publication restriction:	Nil