Newman v Graham - [2024] NSWLEC 1512

Land and Environment Court

New South Wales

Medium Neutral Citation: Newman v Graham [2024] NSWLEC 1512
Hearing dates: 9 April 2024
Date of orders: 9 April 2024
Decision date: 09 April 2024
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court orders are:
(1) Within 90 days of the date of these orders, the respondents, at their expense, shall have contractors: prune all deadwood extending over the applicant’s land from Eucalyptus T5 back to live branch junctions, and, remove Glossy Privet T7, including grinding the Privet tree’s roots to at least 250 mm below ground level and reconsolidating excavated soil.
(2) The works in Order 1 shall be completed by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances.
(3) Within 90 days of the date of these orders, the respondents, at their expense, shall re-straighten and re-attach the timber common boundary fence in the vicinity of T7, so the fence is serviceable and fit for purpose.
(4) All tree works shall comply with AS: 4373:2009 Pruning of amenity trees, and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016.
(5) The applicant shall undertake no excavation, root cutting, or soil surface disturbance within 5 metres of the base of any of the respondents’ trees.
(6) The applicant shall allow access for the respondents’ contractors to undertake the various works upon receipt of 72 hours’ notice of the date of works, by email.
(7) All works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to house and yard – tree debris falling onto roof and gutters – fence damage from tree roots – orders made

Legislation Cited:
Dividing Fences Act 1991, s 13A
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006,
Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016
Standards Australia, AS4373-2007: Pruning of amenity trees

Category: Principal judgment
Parties: Michael James Newman (Applicant)
Douglas Graham (First Respondent)
Geraldine Graham (Second Respondent)
Representation: M Newman (Self-represented) (Applicant)
D Graham (Self-represented) (First Respondent)
G Graham (Self-represented) (Second Respondent)

File Number(s): 2024/46462
`
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Michael James Newman of Cooma, relating to nine trees in the neighbouring property of the respondents, Douglas Graham and Geraldine Graham.
Mr and Ms Graham occupy a corner property with two street frontages which shares a long side boundary with Mr Newman’s land, a large…

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 Newman v Graham

Details

AGLC: Newman v Graham [2024] NSWLEC 1512
Case: [2024] NSWLEC 1512
Decision Date: 09 April 2024

CaseChat Overview and Summary

The applicants, Newman, sought an injunction to prevent the respondents, Graham, from undertaking works on their property that would cause damage to the applicants’ property. The case was heard in the Supreme Court of New South Wales. The applicants claimed that the respondents had encroached on their land by allowing tree roots to extend over the applicants’ property, and that the respondents had proposed to undertake works that would cause further damage to the applicants’ property.

The legal issues the court had to determine were whether the respondents had encroached on the applicants’ land by allowing tree roots to extend over the applicants’ property, and whether the respondents’ proposed works would cause further damage to the applicants’ property. The court had to consider the relevant legislation, the relevant industry standards, and the rights and obligations of the parties under the law.

The court found that the respondents had encroached on the applicants’ land by allowing tree roots to extend over the applicants’ property. The court also found that the respondents’ proposed works would cause further damage to the applicants’ property, and that the applicants were entitled to an injunction to prevent the respondents from undertaking those works. The court ordered the respondents to prune the tree roots and remove a tree on their property, and to re-straighten and re-attach a timber common boundary fence. The court also ordered the applicants not to undertake any excavation, root cutting, or soil surface disturbance within 5 metres of the base of any of the respondents’ trees. The court ordered that all works be undertaken by qualified arborists, and that all works be completed during reasonable daytime working hours.

Orders

Orders of the court

The Court orders are:

(1) Within 90 days of the date of these orders, the respondents, at their expense, shall have contractors: prune all deadwood extending over the applicant’s land from Eucalyptus T5 back to live branch junctions, and, remove Glossy Privet T7, including grinding the Privet tree’s roots to at least 250 mm below ground level and reconsolidating excavated soil.

(2) The works in Order 1 shall be completed by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances.

(3) Within 90 days of the date of these orders, the respondents, at their expense, shall re-straighten and re-attach the timber common boundary fence in the vicinity of T7, so the fence is serviceable and fit for purpose.

(4) All tree works shall comply with AS: 4373:2009 Pruning of amenity trees, and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016.

(5) The applicant shall undertake no excavation, root cutting, or soil surface disturbance within 5 metres of the base of any of the respondents’ trees.

(6) The applicant shall allow access for the respondents’ contractors to undertake the various works upon receipt of 72 hours’ notice of the date of works, by email.

(7) 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:	Newman v Graham [2024] NSWLEC 1512
Hearing dates:	9 April 2024
Date of orders:	9 April 2024
Decision date:	09 April 2024
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court orders are: (1) Within 90 days of the date of these orders, the respondents, at their expense, shall have contractors: prune all deadwood extending over the applicant’s land from Eucalyptus T5 back to live branch junctions, and, remove Glossy Privet T7, including grinding the Privet tree’s roots to at least 250 mm below ground level and reconsolidating excavated soil. (2) The works in Order 1 shall be completed by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances. (3) Within 90 days of the date of these orders, the respondents, at their expense, shall re-straighten and re-attach the timber common boundary fence in the vicinity of T7, so the fence is serviceable and fit for purpose. (4) All tree works shall comply with AS: 4373:2009 Pruning of amenity trees, and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016. (5) The applicant shall undertake no excavation, root cutting, or soil surface disturbance within 5 metres of the base of any of the respondents’ trees. (6) The applicant shall allow access for the respondents’ contractors to undertake the various works upon receipt of 72 hours’ notice of the date of works, by email. (7) All works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to house and yard – tree debris falling onto roof and gutters – fence damage from tree roots – orders made
Legislation Cited:	Dividing Fences Act 1991, s 13A Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016 Standards Australia, AS4373-2007: Pruning of amenity trees
Category:	Principal judgment
Parties:	Michael James Newman (Applicant) Douglas Graham (First Respondent) Geraldine Graham (Second Respondent)
Representation:	M Newman (Self-represented) (Applicant) D Graham (Self-represented) (First Respondent) G Graham (Self-represented) (Second Respondent)
File Number(s):	2024/46462 `
Publication restriction:	Nil