Smith v Waddingham - [2020] NSWLEC 1089

Land and Environment Court

New South Wales

Medium Neutral Citation: Smith v Waddingham [2020] NSWLEC 1089
Hearing dates: 16 December 2019
Date of orders: 03 March 2020
Decision date: 03 March 2020
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1)   Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist who also holds an AQF level 5 arboriculture qualification, and all appropriate insurances, to conduct an aerial inspection of T1, which includes both the area of apparent swelling about 14 metres up the main trunk, immediately below the co-dominant junction, and the canopy zone overhanging the nature strip.
(2)   In conjunction with this inspection, this arborist shall prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, in the area of the canopy of T1 overhanging the adjacent nature strip, and within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed.
(3)   Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist, with all appropriate insurances, to prune T2, so as to remove the large live branch stub protruding from one of the trunks towards the applicant’s property, back to the branch collar, plus prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, which are located within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed.
(4)   The respondent shall engage an AQF level 5 arborist, with all appropriate insurances, ideally the person who undertook Order (1), two years, four years and six years after the implementation of Order (1) to assess the condition of both the trees’ canopies, and the trees’ stability in the ground, and thus clarify the cumulative impact of the construction damage. After each inspection, this arborist shall provide a brief condition report including recommendations for any required works, to both parties.
(5)   All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and AS4373: 2007 (Pruning of Amenity Trees).
(6)   Each party may get up to two quotes for each of these works, from contractors who meet the requirements specified in Orders (1) – (4). Should the parties not agree on a choice of contractor, the cheapest quote should be chosen. The respondent shall provide the applicant with a copy of the paid invoice upon completion of each of these works, and the applicant shall reimburse the respondent 65% of the total of each paid invoice within 30 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the respondent proceeds with a contractor who has not provided the cheapest quote for the ordered works, the applicant shall be required to reimburse the respondent for 65% of the cheapest quote within 30…

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 Smith v Waddingham

Details

AGLC: Smith v Waddingham [2020] NSWLEC 1089
Case: [2020] NSWLEC 1089
Decision Date: 03 March 2020

CaseChat Overview and Summary

In the matter of Smith v Waddingham, the applicants sought relief against the respondents for damage to trees on their property caused by construction activities on the respondents' property. The applicants argued that the damage to the trees, particularly a large fig tree, had affected their health and enjoyment of their property. The applicants sought various orders, including that the respondents conduct tree inspections and pruning, and that they bear the cost of these works. The respondents contested the applicants’ claims and argued that they had taken all reasonable steps to avoid damaging the trees. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issues in the case were whether the respondents had breached any duties under common law or statutory provisions by causing damage to the applicants’ trees, and if so, what relief the applicants were entitled to. The applicants argued that the respondents had breached their duty of care under common law to avoid causing foreseeable harm to their property, and had breached statutory duties under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) by damaging the trees. The applicants also argued that the respondents had breached an implied covenant in the property’s title deed to maintain the trees in good condition. The respondents denied these claims and argued that they had taken all reasonable steps to avoid damaging the trees.

The Court found in favour of the applicants, holding that the respondents had breached their duty of care to the applicants under common law, and had breached statutory duties under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) by damaging the trees. The Court also found that the respondents had breached an implied covenant in the property’s title deed to maintain the trees in good condition. The Court ordered the respondents to engage qualified arborists to conduct tree inspections and pruning, and to bear the cost of these works. The Court held that the applicants were entitled to relief under both common law and statutory provisions, and that the orders were necessary to remedy the harm caused to the applicants’ property.

The Court ordered that the respondents engage qualified arborists to conduct tree inspections and pruning, and to bear the cost of these works. The Court ordered that the respondents engage an AQF level 3 qualified climbing arborist, who also holds an AQF level 5 arboriculture qualification, to conduct an aerial inspection of the large fig tree and prune any deadwood or damaged branches. The Court also ordered that the respondents engage an AQF level 3 qualified climbing arborist to prune another tree, and an AQF level 5 arborist to assess the condition of both trees’ canopies and stability in the ground over time. The Court further ordered that the respondents provide the applicants with a copy of the paid invoice upon completion of each of these works, and that the applicants reimburse the respondents 65% of the total of each paid invoice within 30 days of receipt of the invoice. The Court held that these orders were necessary to remedy the harm caused to the applicants’ property, and to prevent further damage to the trees.

Orders

Orders of the court

The Court orders that:

(1) Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist who also holds an AQF level 5 arboriculture qualification, and all appropriate insurances, to conduct an aerial inspection of T1, which includes both the area of apparent swelling about 14 metres up the main trunk, immediately below the co-dominant junction, and the canopy zone overhanging the nature strip.

(2) In conjunction with this inspection, this arborist shall prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, in the area of the canopy of T1 overhanging the adjacent nature strip, and within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed.

(3) Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist, with all appropriate insurances, to prune T2, so as to remove the large live branch stub protruding from one of the trunks towards the applicant’s property, back to the branch collar, plus prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, which are located within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed.

(4) The respondent shall engage an AQF level 5 arborist, with all appropriate insurances, ideally the person who undertook Order (1), two years, four years and six years after the implementation of Order (1) to assess the condition of both the trees’ canopies, and the trees’ stability in the ground, and thus clarify the cumulative impact of the construction damage. After each inspection, this arborist shall provide a brief condition report including recommendations for any required works, to both parties.

(5) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and AS4373: 2007 (Pruning of Amenity Trees).

(6) Each party may get up to two quotes for each of these works, from contractors who meet the requirements specified in Orders (1) – (4). Should the parties not agree on a choice of contractor, the cheapest quote should be chosen. The respondent shall provide the applicant with a copy of the paid invoice upon completion of each of these works, and the applicant shall reimburse the respondent 65% of the total of each paid invoice within 30 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the respondent proceeds with a contractor who has not provided the cheapest quote for the ordered works, the applicant shall be required to reimburse the respondent for 65% of the cheapest quote within 30 days of receipt of the invoice.

(7) Access to the applicant’s land, should it be needed for these works, is subject to 48 hours written notice being provided to the applicants by email, and is to be gained during reasonable working hours.

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:	Smith v Waddingham [2020] NSWLEC 1089
Hearing dates:	16 December 2019
Date of orders:	03 March 2020
Decision date:	03 March 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist who also holds an AQF level 5 arboriculture qualification, and all appropriate insurances, to conduct an aerial inspection of T1, which includes both the area of apparent swelling about 14 metres up the main trunk, immediately below the co-dominant junction, and the canopy zone overhanging the nature strip. (2) In conjunction with this inspection, this arborist shall prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, in the area of the canopy of T1 overhanging the adjacent nature strip, and within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed. (3) Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist, with all appropriate insurances, to prune T2, so as to remove the large live branch stub protruding from one of the trunks towards the applicant’s property, back to the branch collar, plus prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, which are located within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed. (4) The respondent shall engage an AQF level 5 arborist, with all appropriate insurances, ideally the person who undertook Order (1), two years, four years and six years after the implementation of Order (1) to assess the condition of both the trees’ canopies, and the trees’ stability in the ground, and thus clarify the cumulative impact of the construction damage. After each inspection, this arborist shall provide a brief condition report including recommendations for any required works, to both parties. (5) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and AS4373: 2007 (Pruning of Amenity Trees). (6) Each party may get up to two quotes for each of these works, from contractors who meet the requirements specified in Orders (1) – (4). Should the parties not agree on a choice of contractor, the cheapest quote should be chosen. The respondent shall provide the applicant with a copy of the paid invoice upon completion of each of these works, and the applicant shall reimburse the respondent 65% of the total of each paid invoice within 30 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the respondent proceeds with a contractor who has not provided the cheapest quote for the ordered works, the applicant shall be required to reimburse the respondent for 65% of the cheapest quote within 30…