Sayigh v Rallis - [2024] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation: Sayigh v Rallis [2024] NSWLEC 1666
Hearing dates: 15 October 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted to the extent of the following orders.
(2)   The respondents shall remove the tree the subject of these proceedings within 28 days of the making of these orders in accordance with the tree removal permit number TA2024/0293 from Georges River Council dated 25 July 2024.
(3)   The tree removal works in Order (2) are to be done by a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, and are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(4)   The respondents are to give the applicant one week’s notice of the works in Order (2) if the date currently agreed for the works changes.
(5)   The applicant is to allow reasonable access for the works during reasonable hours of the day.
(6)   The respondents shall pay the applicant an amount of $850.00 on account of the damage caused by the tree within 7 days of the date of these orders.
(7)   Within 90 days of the date of these orders the respondents are to plant on their property two canopy trees.
(8)   Liberty to relist should the weather prevent the respondents completing works in the timeframes above.
(9)   The exhibits are returned, other than Exhibits A, B and C.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree has caused damage – consent orders – compensation – tree removal

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:
Breen v Caronna [2008] NSWLEC 293
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category: Principal judgment
Parties: Elias Sayigh (Applicant)
Christina Rallis (First Respondent)
Sam Ross Perre (Second Respondent)
Representation:
E Sayigh (Self-represented) (Applicant)
M Abrahamian (Solicitor) (Respondents)
Solicitors:
Law Corporation Pty Ltd (Respondents)

File Number(s): 2024/295339
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: This neighbourhood dispute involves a large gum tree near the rear boundary of the Lugarno property belonging to Christina Rallis and Sam Perre (the respondents). The tree overhangs the adjoining property belonging to Elias Sayigh (the applicant). On 10 December 2023 a large branch fell from the tree, damaging a trampoline in Mr Sayigh’s backyard.
The respondents’ live abroad; their property is rented to tenants and managed by a property agent. My Sayigh attempted, unsuccessfully at first, to contact the respondents. Eventually, the respondents agreed to remove the tree and obtained consent for its removal from Georges River Council (Council). Weather and other obstacles delayed the tree being removed as planned. Frustrated by the ongoing delays, Mr…

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 Sayigh v Rallis

Details

AGLC: Sayigh v Rallis [2024] NSWLEC 1666
Case: [2024] NSWLEC 1666
Decision Date: 15 October 2024

CaseChat Overview and Summary

In the case of Sayigh v Rallis, the plaintiff, Sayigh, sought relief from the court against the respondents, Rallis, in relation to a dispute concerning the removal of a tree from the respondents' property. The matter was heard in the Local Court of New South Wales. The primary contention was the respondents' failure to remove a tree that had encroached onto the plaintiff's property, causing damage. Sayigh sought an order for the removal of the tree and compensation for the damage caused.

The court was tasked with determining whether the respondents were legally obligated to remove the tree and if so, under what conditions. Additionally, the court had to consider whether the respondents should compensate the plaintiff for the damage caused by the tree. The court also needed to decide on the appropriate timeframes for the removal and the necessary qualifications of the arborist conducting the removal.

The court found that the respondents were indeed required to remove the tree and that the removal had to be carried out by a qualified arborist in accordance with safety guidelines. The court granted the application and ordered the removal of the tree within 28 days, specifying the use of a tree removal permit from Georges River Council. The respondents were instructed to give the plaintiff one week's notice if the scheduled removal date changed. Furthermore, the court ordered the respondents to compensate the plaintiff for the damage and to plant two canopy trees on their property within 90 days. The exhibits were returned, except for certain specified documents. The court retained liberty to relist if adverse weather conditions impacted the respondents' ability to complete the works.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) The respondents shall remove the tree the subject of these proceedings within 28 days of the making of these orders in accordance with the tree removal permit number TA2024/0293 from Georges River Council dated 25 July 2024.

(3) The tree removal works in Order (2) are to be done by a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, and are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondents are to give the applicant one week’s notice of the works in Order (2) if the date currently agreed for the works changes.

(5) The applicant is to allow reasonable access for the works during reasonable hours of the day.

(6) The respondents shall pay the applicant an amount of $850.00 on account of the damage caused by the tree within 7 days of the date of these orders.

(7) Within 90 days of the date of these orders the respondents are to plant on their property two canopy trees.

(8) Liberty to relist should the weather prevent the respondents completing works in the timeframes above.

(9) The exhibits are returned, other than Exhibits A, B and C.

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:	Sayigh v Rallis [2024] NSWLEC 1666
Hearing dates:	15 October 2024
Date of orders:	15 October 2024
Decision date:	15 October 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following orders. (2) The respondents shall remove the tree the subject of these proceedings within 28 days of the making of these orders in accordance with the tree removal permit number TA2024/0293 from Georges River Council dated 25 July 2024. (3) The tree removal works in Order (2) are to be done by a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, and are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (4) The respondents are to give the applicant one week’s notice of the works in Order (2) if the date currently agreed for the works changes. (5) The applicant is to allow reasonable access for the works during reasonable hours of the day. (6) The respondents shall pay the applicant an amount of $850.00 on account of the damage caused by the tree within 7 days of the date of these orders. (7) Within 90 days of the date of these orders the respondents are to plant on their property two canopy trees. (8) Liberty to relist should the weather prevent the respondents completing works in the timeframes above. (9) The exhibits are returned, other than Exhibits A, B and C.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree has caused damage – consent orders – compensation – tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12
Cases Cited:	Breen v Caronna [2008] NSWLEC 293 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)
Category:	Principal judgment
Parties:	Elias Sayigh (Applicant) Christina Rallis (First Respondent) Sam Ross Perre (Second Respondent)
Representation:	E Sayigh (Self-represented) (Applicant) M Abrahamian (Solicitor) (Respondents) Solicitors: Law Corporation Pty Ltd (Respondents)
File Number(s):	2024/295339
Publication restriction:	Nil