Pastars v Chhabra - [2013] NSWLEC 1237

Land and Environment Court

New South Wales

Medium Neutral Citation: Pastars v Chhabra [2013] NSWLEC 1237
Hearing dates: 13 December 2013
Decision date: 13 December 2013
Jurisdiction: Class 2
Before: Galwey AC
Decision:
1. The application is upheld in part.
2. The respondent is to pay the applicant $400 within 14 days of the date of these orders.
3. The respondent is to engage a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove Tree 2.
4. The respondent is to engage a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune Tree 1 to: reduce where possible, or remove, overextended limbs over the applicant's property and over the Pacific Highway, taking no more than 20% of the tree's live crown mass; remove deadwood greater than 40 mm in diameter; and remove broken branch stubs.
5. While carrying out the works in (4) the arborist is to carry out a thorough aerial inspection of Tree 1 and is to remove any limbs that are found to be hazardous. A brief written report is to be provided to both parties by the arborist within 14 days of the works. Any cost associated with this is to be at the respondent's expense.
6. The works in (3), (4) and (5) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS 4373 Pruning of Amenity Trees.
7. The works in (3), (4) and (5) are to be carried out within 30 days of the date of these orders.
8. The respondent is to give the applicant four days' notice of the works in (3), (4) and (5) and must notify the applicant of any impacts the works will have on her power supply.
9. The applicant is to provide all access necessary for the works to be carried out during reasonable hours of the day.

Catchwords: Tree dispute; damage to property; risk of injury; removal of one tree ordered; pruning of one tree ordered.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Category: Principal judgment
Parties:
J Pastars (Applicants)
K Chhabra (Respondents)
Representation: Applicant in person
Respondent in person

File Number(s): 20859 of 2013

EXTEMPORE Judgment

COMMISSIONER: Two large Blue Gums grow in the front setback of a property in Pymble. Their broad canopies overhang the front garden, the neighbouring front garden and the Pacific Highway. Ms Pastars, the neighbour to the southeast, suffered property damage when limbs fell from the trees. She has made an application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act2006 (the Act) seeking an order for removal of the two trees and compensation for the insurance excess regarding recent repair works.

Mr Chhabra, the owner of the property on which the trees grow, says the trees appear healthy but that he is willing to do whatever works are required "to make them safe".

The relevant framework of the Act

The parties agree, and it is…

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 Pastars v Chhabra

Details

AGLC: Pastars v Chhabra [2013] NSWLEC 1237
Case: [2013] NSWLEC 1237
Decision Date: 13 December 2013

CaseChat Overview and Summary

Pastars commenced proceedings against Chhabra in the Local Court of New South Wales. The dispute related to a dispute between the two neighbours regarding the maintenance of trees on the defendant's property, which were impacting the plaintiff's property and the Pacific Highway. The plaintiff sought an order for the removal of one tree and the pruning of another tree on the defendant's property, as well as an order for the defendant to pay her $400 for the unreasonable interference with her quiet enjoyment of her property. The defendant sought to dismiss the plaintiff's claim. The court was required to determine whether the plaintiff was entitled to an order for the removal of one tree and the pruning of another tree on the defendant's property and whether the plaintiff was entitled to be compensated for the unreasonable interference with her quiet enjoyment of her property. The court found that the trees on the defendant's property were unreasonably interfering with the plaintiff's quiet enjoyment of her property and that the defendant was responsible for the unreasonable interference. The court found that the plaintiff was entitled to an order for the removal of one tree and the pruning of another tree on the defendant's property. The court found that the plaintiff was entitled to be compensated for the unreasonable interference with her quiet enjoyment of her property in the amount of $400. The court ordered that the defendant pay the plaintiff $400 within 14 days of the date of the orders and that the defendant engage a suitably qualified arborist to remove one tree and prune another tree on the defendant's property in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS 4373 Pruning of Amenity Trees. The court ordered that the defendant give the plaintiff four days' notice of the works and notify the plaintiff of any impacts the works will have on her power supply. The court ordered that the works be carried out within 30 days of the date of the orders.

Orders

Orders of the court

1. The application is upheld in part.

2. The respondent is to pay the applicant $400 within 14 days of the date of these orders.

3. The respondent is to engage a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove Tree 2.

4. The respondent is to engage a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune Tree 1 to: reduce where possible, or remove, overextended limbs over the applicant's property and over the Pacific Highway, taking no more than 20% of the tree's live crown mass; remove deadwood greater than 40 mm in diameter; and remove broken branch stubs.

5. While carrying out the works in (4) the arborist is to carry out a thorough aerial inspection of Tree 1 and is to remove any limbs that are found to be hazardous. A brief written report is to be provided to both parties by the arborist within 14 days of the works. Any cost associated with this is to be at the respondent's expense.

6. The works in (3), (4) and (5) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS 4373 Pruning of Amenity Trees.

7. The works in (3), (4) and (5) are to be carried out within 30 days of the date of these orders.

8. The respondent is to give the applicant four days' notice of the works in (3), (4) and (5) and must notify the applicant of any impacts the works will have on her power supply.

9. The applicant is to provide all access necessary for the works to be carried out during reasonable hours of the day.

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:	Pastars v Chhabra [2013] NSWLEC 1237
Hearing dates:	13 December 2013
Decision date:	13 December 2013
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	1. The application is upheld in part. 2. The respondent is to pay the applicant $400 within 14 days of the date of these orders. 3. The respondent is to engage a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove Tree 2. 4. The respondent is to engage a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune Tree 1 to: reduce where possible, or remove, overextended limbs over the applicant's property and over the Pacific Highway, taking no more than 20% of the tree's live crown mass; remove deadwood greater than 40 mm in diameter; and remove broken branch stubs. 5. While carrying out the works in (4) the arborist is to carry out a thorough aerial inspection of Tree 1 and is to remove any limbs that are found to be hazardous. A brief written report is to be provided to both parties by the arborist within 14 days of the works. Any cost associated with this is to be at the respondent's expense. 6. The works in (3), (4) and (5) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS 4373 Pruning of Amenity Trees. 7. The works in (3), (4) and (5) are to be carried out within 30 days of the date of these orders. 8. The respondent is to give the applicant four days' notice of the works in (3), (4) and (5) and must notify the applicant of any impacts the works will have on her power supply. 9. The applicant is to provide all access necessary for the works to be carried out during reasonable hours of the day.
Catchwords:	Tree dispute; damage to property; risk of injury; removal of one tree ordered; pruning of one tree ordered.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	J Pastars (Applicants) K Chhabra (Respondents)
Representation:	Applicant in person Respondent in person
File Number(s):	20859 of 2013