Rizotto v Drummond - [2022] NSWLEC 1431

Land and Environment Court

New South Wales

Medium Neutral Citation: Rizotto v Drummond [2022] NSWLEC 1431
Hearing dates: 25 May 2022
Date of orders: 19 August 2022
Decision date: 19 August 2022
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court orders:
1) The application is granted.
2) Within 45 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to remove the Jacaranda tree to near ground level, poison stump and remove all refuse.
3) Within 60 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to install a 600mm heavy plastic continuous proprietary root barrier, at least 3mm thick, to a depth of 550mm with 50mm left protruding vertically above the soil surface, from the back fence to a point on the common boundary which intersects with a north-south line cast from the eastern end of the applicant’s garage/granny flat roof. The barrier shall include a 2m continuous extension southward, further back into the respondent’s property along the back fence at the western end, and a 1m continuous extension southward at the eastern end. Clay subsoil used to refill the trench should be progressively compacted as heavily as possible into the trench, and up against the barrier.
4) To facilitate the works in Order 3, each party shall procure up to two quotations. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen arborist satisfying the qualification and insurance requirements of the said order. Should it be required, each party shall provide the other with access to their properties for the purpose of gaining said quotations, upon receipt of at least 48 hours written notice.
5) Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicant with a copy of an itemised paid invoice for the works.
6) Within 7 days after receipt of the paid invoice in Order 5, the applicant shall reimburse the respondents for a quantum of 50% of the cheapest of the acceptable quotations from qualified, insured arborists, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation.
7) Should any bamboo roots or culms subsequently protrude through or under the common boundary, the applicant shall notify the respondents in writing, and the respondent shall remove and poison said bamboo culms within 21 days of notification by the applicant.
8) Where access is required to complete these works, the applicant shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works.
9) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
10) All works shall be completed during normal work hours.

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 Rizotto v Drummond

Details

AGLC: Rizotto v Drummond [2022] NSWLEC 1431
Case: [2022] NSWLEC 1431
Decision Date: 19 August 2022

CaseChat Overview and Summary

The matter of Rizotto v Drummond was before the court to address disputes between neighbours regarding the management of a Jacaranda tree and bamboo plants on their shared boundary. The applicant sought an order for the removal and replacement of the tree, as well as the installation of a root barrier to prevent the bamboo from encroaching onto their property. The respondents opposed the application, arguing that the proposed works were unnecessary and would cause significant damage to their property.

The court had to determine whether the applicant was entitled to the relief sought, including the removal of the Jacaranda tree, the installation of a root barrier, and the reimbursement of costs. The court also needed to consider the proportionality and necessity of the proposed works, as well as the impact on both parties.

In determining the application, the court considered the evidence presented by both parties, including expert reports and witness statements. The court found that the bamboo was causing damage to the applicant’s property and that the proposed works were necessary to prevent further damage. The court also found that the proposed works were proportionate and would not cause significant harm to the respondents’ property. The court therefore granted the application in part, ordering the removal of the Jacaranda tree, the installation of a root barrier, and the reimbursement of costs.

The court also made orders regarding the process for procuring quotations for the works, the provision of access to the properties, and the compliance with safety standards. The court emphasised the importance of communication and cooperation between the parties in carrying out the works. The court also noted that the respondents were required to provide an itemised paid invoice for the works and that the applicant would reimburse 50% of the cheapest acceptable quotation, regardless of which quotation the respondents chose to proceed with.

Orders

Orders of the court

The Court orders:

1) The application is granted.

2) Within 45 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to remove the Jacaranda tree to near ground level, poison stump and remove all refuse.

3) Within 60 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to install a 600mm heavy plastic continuous proprietary root barrier, at least 3mm thick, to a depth of 550mm with 50mm left protruding vertically above the soil surface, from the back fence to a point on the common boundary which intersects with a north-south line cast from the eastern end of the applicant’s garage/granny flat roof. The barrier shall include a 2m continuous extension southward, further back into the respondent’s property along the back fence at the western end, and a 1m continuous extension southward at the eastern end. Clay subsoil used to refill the trench should be progressively compacted as heavily as possible into the trench, and up against the barrier.

4) To facilitate the works in Order 3, each party shall procure up to two quotations. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen arborist satisfying the qualification and insurance requirements of the said order. Should it be required, each party shall provide the other with access to their properties for the purpose of gaining said quotations, upon receipt of at least 48 hours written notice.

5) Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicant with a copy of an itemised paid invoice for the works.

6) Within 7 days after receipt of the paid invoice in Order 5, the applicant shall reimburse the respondents for a quantum of 50% of the cheapest of the acceptable quotations from qualified, insured arborists, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation.

7) Should any bamboo roots or culms subsequently protrude through or under the common boundary, the applicant shall notify the respondents in writing, and the respondent shall remove and poison said bamboo culms within 21 days of notification by the applicant.

8) Where access is required to complete these works, the applicant shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works.

9) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

10) All works shall be completed during normal work 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:	Rizotto v Drummond [2022] NSWLEC 1431
Hearing dates:	25 May 2022
Date of orders:	19 August 2022
Decision date:	19 August 2022
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court orders: 1) The application is granted. 2) Within 45 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to remove the Jacaranda tree to near ground level, poison stump and remove all refuse. 3) Within 60 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to install a 600mm heavy plastic continuous proprietary root barrier, at least 3mm thick, to a depth of 550mm with 50mm left protruding vertically above the soil surface, from the back fence to a point on the common boundary which intersects with a north-south line cast from the eastern end of the applicant’s garage/granny flat roof. The barrier shall include a 2m continuous extension southward, further back into the respondent’s property along the back fence at the western end, and a 1m continuous extension southward at the eastern end. Clay subsoil used to refill the trench should be progressively compacted as heavily as possible into the trench, and up against the barrier. 4) To facilitate the works in Order 3, each party shall procure up to two quotations. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen arborist satisfying the qualification and insurance requirements of the said order. Should it be required, each party shall provide the other with access to their properties for the purpose of gaining said quotations, upon receipt of at least 48 hours written notice. 5) Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicant with a copy of an itemised paid invoice for the works. 6) Within 7 days after receipt of the paid invoice in Order 5, the applicant shall reimburse the respondents for a quantum of 50% of the cheapest of the acceptable quotations from qualified, insured arborists, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation. 7) Should any bamboo roots or culms subsequently protrude through or under the common boundary, the applicant shall notify the respondents in writing, and the respondent shall remove and poison said bamboo culms within 21 days of notification by the applicant. 8) Where access is required to complete these works, the applicant shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works. 9) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 10) All works shall be completed during normal work hours.