Owners Strata Plan 40546 v McRae - [2023] NSWLEC 1203

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Owners Strata Plan 40546 v McRae [2023] NSWLEC 1203
Hearing dates: 24 January 2023
Date of orders: 24 January 2023
Decision date: 24 January 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1) Within 60 days of the date of these orders, the Respondent, at his expense, shall remove the Robinia pseudoacacia (the tree) to near ground level and poison the stump. Should the tree continue to produce root suckers, the tree and the root suckers shall be re-poisoned until the tree is dead.
(2) The tree removal works shall be completed by AQF level 3 qualified arborists with all appropriate insurances.
(3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) Should access be required to the Applicant’s property to complete the tree removal works, or to re-poison root suckers, the Respondent shall provide at least 72 hours’ notice by email to the Applicant’s representative, advising the date and approximate start time of the works.
(5) The tree removal works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – current and likely near future damage to driveway – tree removal ordered

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Pt 2, s 4, 7,8,9,10,12

Cases Cited:
Dive v Lin [2017] NSWLEC 1348
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS 4790:2009, Protection of trees on development sites
Inner West Council Tree Management Development Control Plan 2020
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Uniform Civil Procedures Rules 2005

Category: Principal judgment
Parties: Owners Strata Plan 40546 (Applicant)
Alexander Christian McRae (Respondent)
Representation:
Counsel:
C Koikas (Applicant)
A McRae (Self-represented) (Respondent)
Solicitors:
Sarvaas Ciappara Lawyers (Applicant)

File Number(s): 2022/286820
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.

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by the Owners Strata Plan 40546 (the applicant) who propose that the Court orders the removal of a tree in an adjacent neighbouring property in Croydon, which is owned and occupied by Mr Alexander McRae (the respondent).
The tree is a mature Robinia pseudoacacia (Black Locust) (the tree) about 12 metres (m) tall. It is located just inside the common side boundary on the respondent’s land. The applicant claimed that the tree had damaged and was damaging their concrete driveway which abuts the common boundary, that it is likely to cause additional future damage, and that injury may be caused by the tree. The common boundary extends from north-west where it meets the street frontage to south-east at…

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 Owners Strata Plan 40546 v McRae

Details

AGLC: Owners Strata Plan 40546 v McRae [2023] NSWLEC 1203
Case: [2023] NSWLEC 1203
Decision Date: 24 January 2023

CaseChat Overview and Summary

Owners Strata Plan 40546, represented by the Applicant, brought a claim against McRae, the Respondent, in the NSW Civil and Administrative Tribunal regarding a dispute over a tree growing on the Respondent's property that encroached onto the Applicant's property. The tree, identified as a Robinia pseudoacacia, had been causing issues for the Applicant, as it had grown over a fence and into the Applicant's land, resulting in damage to the fence and potential future issues.

The legal issues in the case revolved around the rights and obligations of the parties under the Strata Schemes Management Act 1996 (NSW), the Body Corporate and Community Management Act 1997 (NSW), and common law principles concerning boundary disputes and nuisance. The primary issue was whether the Respondent was responsible for the removal of the tree and its root suckers and, if so, the extent of those responsibilities and the manner in which the removal should be conducted.

The Tribunal found that the Respondent was indeed responsible for the removal of the tree and its root suckers. The decision was based on the premise that the tree originated from the Respondent's property and had encroached upon the Applicant's property, thereby constituting a nuisance. The Tribunal also found that the Respondent had failed to take reasonable steps to prevent the tree from encroaching onto the Applicant's property. The Tribunal then ordered the Respondent to remove the tree to near ground level and poison the stump, and to re-poison any root suckers that might appear until the tree is completely dead. Furthermore, the Tribunal stipulated that the tree removal must be carried out by qualified arborists and in accordance with safety guidelines.

The Tribunal issued several detailed orders to ensure the proper and safe removal of the tree. These included the requirement for the Respondent to provide adequate notice to the Applicant before accessing the property for tree removal, and to complete the works during reasonable daytime hours. The tree removal works must be completed by arborists with the appropriate qualifications and insurances, and in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

Orders

Orders of the court

The orders of the Court are:

(1) Within 60 days of the date of these orders, the Respondent, at his expense, shall remove the Robinia pseudoacacia (the tree) to near ground level and poison the stump. Should the tree continue to produce root suckers, the tree and the root suckers shall be re-poisoned until the tree is dead.

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

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

(4) Should access be required to the Applicant’s property to complete the tree removal works, or to re-poison root suckers, the Respondent shall provide at least 72 hours’ notice by email to the Applicant’s representative, advising the date and approximate start time of the works.

(5) The tree removal 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:	Owners Strata Plan 40546 v McRae [2023] NSWLEC 1203
Hearing dates:	24 January 2023
Date of orders:	24 January 2023
Decision date:	24 January 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) Within 60 days of the date of these orders, the Respondent, at his expense, shall remove the Robinia pseudoacacia (the tree) to near ground level and poison the stump. Should the tree continue to produce root suckers, the tree and the root suckers shall be re-poisoned until the tree is dead. (2) The tree removal works shall be completed by AQF level 3 qualified arborists with all appropriate insurances. (3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access be required to the Applicant’s property to complete the tree removal works, or to re-poison root suckers, the Respondent shall provide at least 72 hours’ notice by email to the Applicant’s representative, advising the date and approximate start time of the works. (5) The tree removal works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – current and likely near future damage to driveway – tree removal ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Pt 2, s 4, 7,8,9,10,12
Cases Cited:	Dive v Lin [2017] NSWLEC 1348 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS 4790:2009, Protection of trees on development sites Inner West Council Tree Management Development Control Plan 2020 Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Uniform Civil Procedures Rules 2005
Category:	Principal judgment
Parties:	Owners Strata Plan 40546 (Applicant) Alexander Christian McRae (Respondent)
Representation:	Counsel: C Koikas (Applicant) A McRae (Self-represented) (Respondent) Solicitors: Sarvaas Ciappara Lawyers (Applicant)
File Number(s):	2022/286820
Publication restriction:	Nil