Pietilainen v Paisley-Topp - [2023] NSWLEC 1069

Land and Environment Court

New South Wales

Medium Neutral Citation: Pietilainen v Paisley-Topp [2023] NSWLEC 1069
Hearing dates: 14 November 2022
Date of orders: 15 February 2023
Decision date: 15 February 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) The application is granted in part.
(2) Within 60 days of the date of these orders, the Respondents, at their expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to prune branches from Tree 1 and Tree 2.
(3) Pruning of Tree 1 shall comprise removal of branch stubs on branches previously pruned above the back shed by the Applicant’s husband, to the nearest branch collar. Branches above the Applicant’s shed, within 1.5 m of the top of the shed, shall also be pruned to the nearest branch collar.
(4) Pruning of Tree 2 shall comprise removal of branches overhanging the Applicant’s dwelling roof to provide a clearance of 2.5 m from the roof.
(5) The total volume of live foliage removed from the sum of this pruning shall not reduce the overall leaf mass of the trees by more than 15%.
(6) Whilst pruning Tree 1 and Tree 2, all deadwood above 10mm diameter at the branch collar shall be removed.
(7) All pruning shall conform with AS4373-2007: Pruning of amenity trees and shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(8) The Applicant shall provide all reasonable access to the Respondents’ contracted arborists to complete the works and remove refuse, upon receipt of at least 72 hours’ notice by email of the date and approximate start time of the tree pruning works.
(9) The pruning works shall be undertaken during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – branches overhanging roof of dwelling – apprehension of damage and injury – leaves falling onto roof, gutters and hard surfaces – mould – unreasonable maintenance burden

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14C, 14E, 14F

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Stevens v Russell [2016] NSWLEC 1233
Tolkin v Speiser & anor [2013] NSWLEC 1225
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Shoalhaven Development Control Plan 2014, Chapter G4 Tree and Vegetation Management
Standards Australia, AS4373-2007: Pruning of Amenity Trees

Category: Principal judgment
Parties: Riita Pietilainen (Applicant)
David Paisley-Topp (First Respondent)
Amber Paisley-Topp (Second Respondent)
Representation:
Counsel:
E Neaves (Solicitor) (Applicant)
D Paisley-Topp (Self represented) (First Respondent)
A Paisley-Topp (Self represented) (Second Respondent)
Solicitors:
Shoalhaven Lawyers (Applicant)

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.

Keep reading for free

Create a free CaseChat account to read Pietilainen v Paisley-Topp and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWLEC 1069
Decision Date: 15 February 2023

CaseChat Overview and Summary

Pietilainen v Paisley-Topp involved a dispute between the applicant and the respondents concerning the maintenance and pruning of trees located on the respondents’ property that were encroaching on the applicant's property. The matter was heard in the Local Court of New South Wales. The applicant sought an order for the respondents to prune certain branches of two trees that were overhanging her property, arguing that the trees posed a safety hazard and caused damage to her property.

The court had to determine whether the respondents were liable for the pruning of the trees, the extent of pruning required, and the conditions under which the pruning should be carried out. The court considered the evidence presented by both parties, including expert reports on arboriculture and the potential risks associated with the trees.

The court found that the trees did indeed pose a safety risk to the applicant’s property and that the respondents were liable for the pruning works. The court ordered the respondents to employ qualified arborists to prune the trees in accordance with industry standards and safety guidelines. The pruning works were to be conducted in a manner that minimised the impact on the trees’ health, with specific instructions on the branches to be removed and the maximum allowable reduction in foliage. The court also specified that the pruning should occur during reasonable hours and that the applicant must provide access to the contractors upon notice. The court’s decision balanced the safety concerns of the applicant with the need to protect the health and aesthetic value of the trees.

Orders

Orders of the court

The Court orders that:

(1) The application is granted in part.

(2) Within 60 days of the date of these orders, the Respondents, at their expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to prune branches from Tree 1 and Tree 2.

(3) Pruning of Tree 1 shall comprise removal of branch stubs on branches previously pruned above the back shed by the Applicant’s husband, to the nearest branch collar. Branches above the Applicant’s shed, within 1.5 m of the top of the shed, shall also be pruned to the nearest branch collar.

(4) Pruning of Tree 2 shall comprise removal of branches overhanging the Applicant’s dwelling roof to provide a clearance of 2.5 m from the roof.

(5) The total volume of live foliage removed from the sum of this pruning shall not reduce the overall leaf mass of the trees by more than 15%.

(6) Whilst pruning Tree 1 and Tree 2, all deadwood above 10mm diameter at the branch collar shall be removed.

(7) All pruning shall conform with AS4373-2007: Pruning of amenity trees and shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(8) The Applicant shall provide all reasonable access to the Respondents’ contracted arborists to complete the works and remove refuse, upon receipt of at least 72 hours’ notice by email of the date and approximate start time of the tree pruning works.

(9) The pruning works shall be undertaken 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:	Pietilainen v Paisley-Topp [2023] NSWLEC 1069
Hearing dates:	14 November 2022
Date of orders:	15 February 2023
Decision date:	15 February 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The application is granted in part. (2) Within 60 days of the date of these orders, the Respondents, at their expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to prune branches from Tree 1 and Tree 2. (3) Pruning of Tree 1 shall comprise removal of branch stubs on branches previously pruned above the back shed by the Applicant’s husband, to the nearest branch collar. Branches above the Applicant’s shed, within 1.5 m of the top of the shed, shall also be pruned to the nearest branch collar. (4) Pruning of Tree 2 shall comprise removal of branches overhanging the Applicant’s dwelling roof to provide a clearance of 2.5 m from the roof. (5) The total volume of live foliage removed from the sum of this pruning shall not reduce the overall leaf mass of the trees by more than 15%. (6) Whilst pruning Tree 1 and Tree 2, all deadwood above 10mm diameter at the branch collar shall be removed. (7) All pruning shall conform with AS4373-2007: Pruning of amenity trees and shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (8) The Applicant shall provide all reasonable access to the Respondents’ contracted arborists to complete the works and remove refuse, upon receipt of at least 72 hours’ notice by email of the date and approximate start time of the tree pruning works. (9) The pruning works shall be undertaken during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – branches overhanging roof of dwelling – apprehension of damage and injury – leaves falling onto roof, gutters and hard surfaces – mould – unreasonable maintenance burden
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14C, 14E, 14F
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Tolkin v Speiser & anor [2013] NSWLEC 1225 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Shoalhaven Development Control Plan 2014, Chapter G4 Tree and Vegetation Management Standards Australia, AS4373-2007: Pruning of Amenity Trees
Category:	Principal judgment
Parties:	Riita Pietilainen (Applicant) David Paisley-Topp (First Respondent) Amber Paisley-Topp (Second Respondent)
Representation:	Counsel: E Neaves (Solicitor) (Applicant) D Paisley-Topp (Self represented) (First Respondent) A Paisley-Topp (Self represented) (Second Respondent) Solicitors: Shoalhaven Lawyers (Applicant)