Somuncu v McDowell - [2024] NSWLEC 1089

Land and Environment Court

New South Wales

Medium Neutral Citation: Somuncu v McDowell [2024] NSWLEC 1089
Hearing dates: 25 August 2023
Date of orders: 01 March 2024
Decision date: 01 March 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application to remove the two trees is upheld.
(2)   The application for compensation is dismissed.
(3)   The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the two fig trees to ground level and to poison their stumps within 60 days of the date of these Orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(4)   The respondent is to give the applicants 2 days’ notice of the works in (3).
(5)   The applicants are to engage a fencing contractor to carry out works to replace the boundary fence shared by the applicants and the respondent. The replacement fence must be timber lapped and capped, with a height of 1.8 metres. These works are to be completed within 90 days of the date that the trees are removed, with the half the cost paid by the applicants and half the cost paid by the respondent.
(6)   The applicants are to give the respondent 2 days’ notice of the works in (5).
(7)   The applicants and the respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding tree removal and fencing orders.
(8)   The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – two mature fig trees – damage to neighbouring property – to what extent the trees caused any damage – whether tree removal is required – compensation – whether damage existed when the applicants purchased their property – whether the respondent could have prevented the damage – tree removal ordered – no compensation for damage

Legislation Cited:
Dividing Fences Act 1991, s 13A
Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:
Body v Bracks [2021] NSWLEC 1614
Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181
Liang v Marsh [2011] NSWLEC 1026

Texts Cited:
Hornsby Council Development Control Plan 2013
Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category: Principal judgment
Parties: Alper Somuncu (First Applicant)
Seda Somuncu (Second Applicant)
Jennifer Anne McDowell (Respondent)
Representation:
Counsel:
G Carolan (Applicants)
C Koikas (Respondent)
Solicitors:
MCK Lawyers (Applicants)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2023/160887
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Jennifer McDowell (the respondent) owns a residential property in Castle Hill, in Sydney’s northwest. On Ms McDowell’s property, near her rear boundary, are two mature trees, both Ficus microcarpa var. hillii (Hills Weeping Fig) (the trees). Alper and Seda Somuncu (the applicants) own the adjoining property behind Ms McDowell. The Somuncus claim…

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 Somuncu v McDowell

Details

AGLC: Somuncu v McDowell [2024] NSWLEC 1089
Case: [2024] NSWLEC 1089
Decision Date: 01 March 2024

CaseChat Overview and Summary

In the matter of Somuncu v McDowell, the dispute arose between the applicants, Mr and Mrs Somuncu, and the respondent, Mr McDowell, regarding the removal of two fig trees that were situated on the boundary line of their properties. The applicants sought an order to have the trees removed, while the respondent opposed the removal and claimed compensation for the loss of the trees. The case was heard in the Local Court of New South Wales. The applicants argued that the trees were causing significant damage to their property, including damage to their fence and potential damage to their house. They also claimed that the trees were impeding their access to their property and were a potential safety hazard. The respondent, on the other hand, argued that the trees were not causing any significant damage and that their removal would result in a loss of privacy and aesthetic value. The court was required to determine whether the trees should be removed and, if so, whether compensation should be paid to the respondent for the loss of the trees. The court also had to determine who should bear the cost of the removal and any associated works, such as the replacement of the boundary fence.

The court found that the trees were causing significant damage to the applicants’ property and that their removal was necessary to prevent further damage. The court also found that the respondent was not entitled to compensation for the loss of the trees, as the removal was necessary for the protection of the applicants’ property. The court ordered that the respondent engage a suitably qualified and experienced arborist to remove the trees and poison their stumps within 60 days of the date of the orders. The court also ordered that the applicants and the respondent each bear half the cost of replacing the boundary fence. The court further ordered that the applicants and the respondent each provide all necessary access for the carrying out of the works. The court found that the respondent had failed to provide any evidence to support his claim for compensation and that the removal of the trees was necessary for the protection of the applicants’ property.

In summary, the court found in favour of the applicants and ordered the removal of the two fig trees situated on the boundary line of the parties' properties. The court also ordered that the respondent engage a suitably qualified and experienced arborist to remove the trees and poison their stumps within 60 days of the date of the orders. The court further ordered that the applicants and the respondent each bear half the cost of replacing the boundary fence. The court found that the respondent was not entitled to compensation for the loss of the trees. The court's orders are final and binding on the parties.

Orders

Orders of the court

The Court orders:

(1) The application to remove the two trees is upheld.

(2) The application for compensation is dismissed.

(3) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the two fig trees to ground level and to poison their stumps within 60 days of the date of these Orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondent is to give the applicants 2 days’ notice of the works in (3).

(5) The applicants are to engage a fencing contractor to carry out works to replace the boundary fence shared by the applicants and the respondent. The replacement fence must be timber lapped and capped, with a height of 1.8 metres. These works are to be completed within 90 days of the date that the trees are removed, with the half the cost paid by the applicants and half the cost paid by the respondent.

(6) The applicants are to give the respondent 2 days’ notice of the works in (5).

(7) The applicants and the respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding tree removal and fencing orders.

(8) The exhibits are returned, other than Exhibit A.

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:	Somuncu v McDowell [2024] NSWLEC 1089
Hearing dates:	25 August 2023
Date of orders:	01 March 2024
Decision date:	01 March 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application to remove the two trees is upheld. (2) The application for compensation is dismissed. (3) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the two fig trees to ground level and to poison their stumps within 60 days of the date of these Orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (4) The respondent is to give the applicants 2 days’ notice of the works in (3). (5) The applicants are to engage a fencing contractor to carry out works to replace the boundary fence shared by the applicants and the respondent. The replacement fence must be timber lapped and capped, with a height of 1.8 metres. These works are to be completed within 90 days of the date that the trees are removed, with the half the cost paid by the applicants and half the cost paid by the respondent. (6) The applicants are to give the respondent 2 days’ notice of the works in (5). (7) The applicants and the respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding tree removal and fencing orders. (8) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – two mature fig trees – damage to neighbouring property – to what extent the trees caused any damage – whether tree removal is required – compensation – whether damage existed when the applicants purchased their property – whether the respondent could have prevented the damage – tree removal ordered – no compensation for damage
Legislation Cited:	Dividing Fences Act 1991, s 13A Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12
Cases Cited:	Body v Bracks [2021] NSWLEC 1614 Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181 Liang v Marsh [2011] NSWLEC 1026
Texts Cited:	Hornsby Council Development Control Plan 2013 Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)
Category:	Principal judgment
Parties:	Alper Somuncu (First Applicant) Seda Somuncu (Second Applicant) Jennifer Anne McDowell (Respondent)
Representation:	Counsel: G Carolan (Applicants) C Koikas (Respondent) Solicitors: MCK Lawyers (Applicants) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2023/160887
Publication restriction:	Nil