Scotton v Crescent Head Resort Pty Ltd - [2024] NSWLEC 1576

Land and Environment Court

New South Wales

Medium Neutral Citation: Scotton v Crescent Head Resort Pty Ltd [2024] NSWLEC 1576
Hearing dates: 28 August 2024
Date of orders: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Class 2
Before: Nichols AC
Decision:
The Orders of the Court are:
(1) The application is granted in part.
(2) Within 120 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 4. Any dead and declining fronds are to be removed in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees.
(3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(4) Commencing six months after the first inspection and frond removal, the work in Order (2) is to be undertaken every six months for the life of the palm.
(5) Should it be required, the applicant is to provide all necessary access for the safe and efficient carrying out of the work in Orders (2) and (4) on reasonable notice.
(6) The application to remove the trees is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Injury from falling palm fronds – potential damage – leaves and debris in gutters – orders made

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

Cases Cited:
Barker v Kryiakides [2007] NSWLEC 292
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093

Texts Cited:
Standards Australia, AS4373: 2007 - Pruning of Amenity Trees
WorkCover NSW, Code of Practice - Amenity Tree Industry

Category: Principal judgment
Parties: Kenneth Scotton (Applicant)
Crescent Head Resort Pty Ltd (Respondent)
Representation: K Scotton (Self-represented) (Applicant)
J O’Dwyer (Agent) (Respondent)

File Number(s): 2024/195266
Publication restriction: Nil

JUDGMENT

COMMISSIONER: The applicant contends that over recent years and in particular since December 2023, three Queen Palms and four Cocos Palms growing on the respondent's property near the boundary have been shedding palm fronds and seed pods onto the applicant’s property. The applicant submitted evidence of one palm frond that had fallen and damaged a parked caravan. The applicant is concerned that unless the palms are removed there is a risk of further damage particularly to the area identified as the space for caravan storage located directly below the Tree 4, and that roots may damage a gravelled area.
Apart from the applicant's concerns about the ongoing risk of damage to property, the applicant is also concerned that the palm fronds may cause injury to people on the applicant’s property.
The application is made pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).
The respondent maintains that the trees are healthy, added a positive contribution to…

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.

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Details

Case: [2024] NSWLEC 1576
Decision Date: 19 September 2024

CaseChat Overview and Summary

The case of Scotton v Crescent Head Resort Pty Ltd involved a dispute between the plaintiff, Scotton, and the defendant, Crescent Head Resort Pty Ltd, regarding the maintenance and removal of a palm tree on the defendant's property. The dispute was heard in the Land and Environment Court of New South Wales. Scotton sought an order for the removal of the palm tree, claiming it posed a safety risk to pedestrians and the adjoining property, and also sought orders for its maintenance. Crescent Head Resort opposed the application, arguing that the tree was not a danger and that its removal would be excessive.

The court was required to determine whether the palm tree constituted a danger to the public or adjoining property, and if so, what the appropriate remedy would be. The court needed to consider the evidence presented by both parties regarding the tree's condition, the potential risks it posed, and the measures that could be taken to mitigate any risks. Additionally, the court had to consider the proportionality of the proposed remedies in relation to the alleged risks.

The court found that while the palm tree was not an immediate danger, it did have the potential to become one if not properly maintained. The court held that the tree required regular maintenance to ensure its safety, and that the defendant was responsible for carrying out this maintenance. The court considered the evidence regarding the appropriate maintenance procedures and determined that the orders proposed by Scotton were not excessive, but that the removal of the tree was not warranted. The court made orders for the regular inspection and maintenance of the tree, while dismissing the application for its removal.

The orders of the court required the respondent to engage a qualified arborist to inspect and maintain the palm tree on a regular basis, while also dismissing the application for its removal. These orders were designed to ensure the safety of the public and adjoining property while also taking into account the proportionality of the proposed remedies.

Orders

Orders of the court

The Orders of the Court are:

(1) The application is granted in part.

(2) Within 120 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 4. Any dead and declining fronds are to be removed in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees.

(3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Commencing six months after the first inspection and frond removal, the work in Order (2) is to be undertaken every six months for the life of the palm.

(5) Should it be required, the applicant is to provide all necessary access for the safe and efficient carrying out of the work in Orders (2) and (4) on reasonable notice.

(6) The application to remove the trees is dismissed.

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:	Scotton v Crescent Head Resort Pty Ltd [2024] NSWLEC 1576
Hearing dates:	28 August 2024
Date of orders:	19 September 2024
Decision date:	19 September 2024
Jurisdiction:	Class 2
Before:	Nichols AC
Decision:	The Orders of the Court are: (1) The application is granted in part. (2) Within 120 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 4. Any dead and declining fronds are to be removed in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees. (3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4) Commencing six months after the first inspection and frond removal, the work in Order (2) is to be undertaken every six months for the life of the palm. (5) Should it be required, the applicant is to provide all necessary access for the safe and efficient carrying out of the work in Orders (2) and (4) on reasonable notice. (6) The application to remove the trees is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Injury from falling palm fronds – potential damage – leaves and debris in gutters – orders made
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Texts Cited:	Standards Australia, AS4373: 2007 - Pruning of Amenity Trees WorkCover NSW, Code of Practice - Amenity Tree Industry
Category:	Principal judgment
Parties:	Kenneth Scotton (Applicant) Crescent Head Resort Pty Ltd (Respondent)
Representation:	K Scotton (Self-represented) (Applicant) J O’Dwyer (Agent) (Respondent)
File Number(s):	2024/195266
Publication restriction:	Nil