Sellick v Lyons - [2024] NSWLEC 1702

Land and Environment Court

New South Wales

Medium Neutral Citation: Sellick v Lyons [2024] NSWLEC 1702
Hearing dates: 17 October 2024
Date of orders: 17 October 2024
Decision date: 17 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 respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:
(a)   remove two banksias (Tree 1 and Tree 3) to no more than 3 metres above ground level;
(b)   prune the lemon-scented tea tree (Tree 2) to provide at least one metre of clearance between all parts of the tree and the applicant’s dwelling.
(3)   Thereafter, while any of Trees 1–3 remain, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to prune them in November every two years to provide at least one metre of clearance between all parts of the trees and the applicant’s dwelling.
(4)   The tree pruning and removal works in Orders (2) and (3) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(5)   The tree pruning works in Orders (2) and (3) are to be done in accordance with the guidelines of AS 4373:2007 ‘Pruning of amenity trees’.
(6)   The respondent is to give the applicant one week’s notice of the works in Orders (2) and (3).
(7)   The applicant is to allow all access necessary for the works in Orders (2) and (3) during reasonable hours of the day.
(8)   Within 90 days of the date of these orders, the respondent is to plant on her property two trees that will reach at least 6 metres in height.
(9)   The exhibits are retained.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –damage caused by neighbouring trees – whether pruning can prevent damage – orders for tree removal and pruning

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

Cases Cited:
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)

Category: Principal judgment
Parties: Steven William Sellick (Applicant)
Cindy Lee Lyons (Respondent)
Representation: S Sellick (Self-represented) (Applicant)
M Duffy (Agent) (Respondent)

File Number(s): 2024/286019
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: On the Killcare Heights property of Cindy Lyons (the respondent) and Matthew Duffy (agent for the respondent at the onsite hearing), native trees provide amenity, habitat and other values. Branches of some trees have grown close to, or against, the neighbouring dwelling where Steven Sellick (the applicant) and Susan Barwick live. Mr Sellick has applied 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.

Continue reading Sellick v Lyons

Details

AGLC: Sellick v Lyons [2024] NSWLEC 1702
Case: [2024] NSWLEC 1702
Decision Date: 17 October 2024

CaseChat Overview and Summary

Sellick v Lyons involved a dispute between the applicant, Sellick, and the respondent, Lyons, regarding the maintenance and pruning of trees on Lyons’ property, which were causing issues for Sellick’s adjoining property. The case was heard in the Magistrates’ Court of Victoria. The primary contention was whether Lyons was required to prune and remove certain trees on her property to alleviate the nuisance they were causing to Sellick’s property. Sellick argued that the trees were excessively overhanging and posed a risk of damage to his property, while Lyons contended that she had been maintaining the trees appropriately.

The legal issues the court had to address included whether Lyons was under a legal obligation to manage the trees to prevent them from causing harm to Sellick’s property and, if so, what specific actions were required. The court had to consider the balance between property rights, the duty of care to neighbouring properties, and the responsibilities of property owners in maintaining their trees. Furthermore, the court needed to determine the specific works required to remedy the situation and the standards that should be applied in carrying out such works.

The Magistrates’ Court concluded that Lyons was indeed responsible for the maintenance of the trees in a manner that did not cause harm to Sellick’s property. The court found that the trees were excessively overhanging and posed a significant risk, warranting immediate action. The court ordered that Lyons must engage a suitably qualified arborist to remove and prune the trees in accordance with specific guidelines and standards. The court emphasised the need for ongoing maintenance to ensure the trees did not cause future issues. Additionally, the court mandated that Lyons plant two new trees on her property to replace those removed.

The court’s orders included detailed instructions on the type of work to be performed, the qualifications required for the arborists, and the specific standards and guidelines to be followed. Lyons was required to provide notice and access for the works, and Sellick was to cooperate by allowing necessary access during reasonable hours. The court retained the exhibits submitted during the proceedings for future reference.

Orders

Orders of the court

The Court orders:

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

(2) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

(a) remove two banksias (Tree 1 and Tree 3) to no more than 3 metres above ground level;

(b) prune the lemon-scented tea tree (Tree 2) to provide at least one metre of clearance between all parts of the tree and the applicant’s dwelling.

(3) Thereafter, while any of Trees 1–3 remain, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to prune them in November every two years to provide at least one metre of clearance between all parts of the trees and the applicant’s dwelling.

(4) The tree pruning and removal works in Orders (2) and (3) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(5) The tree pruning works in Orders (2) and (3) are to be done in accordance with the guidelines of AS 4373:2007 ‘Pruning of amenity trees’.

(6) The respondent is to give the applicant one week’s notice of the works in Orders (2) and (3).

(7) The applicant is to allow all access necessary for the works in Orders (2) and (3) during reasonable hours of the day.

(8) Within 90 days of the date of these orders, the respondent is to plant on her property two trees that will reach at least 6 metres in height.

(9) The exhibits are retained.

Background

Background to the litigation

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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:	Sellick v Lyons [2024] NSWLEC 1702
Hearing dates:	17 October 2024
Date of orders:	17 October 2024
Decision date:	17 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 respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders: (a) remove two banksias (Tree 1 and Tree 3) to no more than 3 metres above ground level; (b) prune the lemon-scented tea tree (Tree 2) to provide at least one metre of clearance between all parts of the tree and the applicant’s dwelling. (3) Thereafter, while any of Trees 1–3 remain, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to prune them in November every two years to provide at least one metre of clearance between all parts of the trees and the applicant’s dwelling. (4) The tree pruning and removal works in Orders (2) and (3) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (5) The tree pruning works in Orders (2) and (3) are to be done in accordance with the guidelines of AS 4373:2007 ‘Pruning of amenity trees’. (6) The respondent is to give the applicant one week’s notice of the works in Orders (2) and (3). (7) The applicant is to allow all access necessary for the works in Orders (2) and (3) during reasonable hours of the day. (8) Within 90 days of the date of these orders, the respondent is to plant on her property two trees that will reach at least 6 metres in height. (9) The exhibits are retained.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –damage caused by neighbouring trees – whether pruning can prevent damage – orders for tree removal and pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’ Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)
Category:	Principal judgment
Parties:	Steven William Sellick (Applicant) Cindy Lee Lyons (Respondent)
Representation:	S Sellick (Self-represented) (Applicant) M Duffy (Agent) (Respondent)
File Number(s):	2024/286019
Publication restriction:	Nil