Sultana v Micallef - [2012] NSWLEC 1078

Land and Environment Court

New South Wales

Medium Neutral Citation: Sultana v Micallef [2012] NSWLEC 1078
Hearing dates: 29 March 2012
Decision date: 29 March 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; removal of one tree ordered and the pruning of others

Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; leaf litter; noxious weeds;
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Rural Fires Act 1997
Noxious Weeds Act 1993
Cases Cited: Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Clune v Falconer [2008] NSWLEC 1458
Moase v McMahon [2010] NSWLEC 1123
Ratay v Allen [2010] NSWLEC 1086
Freeman v Dillon [2012] NSWLEC 1057
Ghazal v Vella (No. 2) [2011] NSWLEC 1340
Barker v Kyriakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Category: Principal judgment
Parties: Mrs L Sultana (Applicant)
Mr P and Mrs V Micallef (Respondents)
Representation: Applicant: Mrs L Sultana (Litigant in person)
Respondents: Mr I Roche (Solicitor)
Respondents: Shaddicks

File Number(s): 21261 of 2011

Judgment

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

COMMISSIONER: This is an application made under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Schofields against the owners of trees growing on an adjoining property.

The applicant contends that 69 trees growing along the common boundary on the northern side of her property have caused, and could in the future cause, damage to her property and could cause injury to anyone on her property.

The orders sought in the application are summarised as:

Removal of trees that are threatening buildings and structures;
Removal of overhanging branches;
Removal or treatment of diseased or termite infested trees;
Removal of noxious weeds;
Clearing of gutters of all debris that has accumulated within and on the buildings;
Flushing of drains of all debris accumulated over the past 14 years;
Removal of any tree roots that are encroaching and that may cause injury or are deemed to be a fire hazard;
Limits on any future planting of trees to avoid future damage or injury;
Reimbursement of a pest control invoice; and
Reimbursement of the Court filing fee.

After the inspection of the trees, the applicant stated that she would be content with orders for the removal of all dead trees and the pruning of the remainder to fence height - about 1.5m above ground.

The respondents do not wish to remove or prune all of the trees. They have permission from Blacktown City Council to remove some trees and to prune others. The removal of dead trees does not require council permission.

The row of trees is of mixed species with predominantly Cupressus sp (Cypress Pines) at the western end and then an alternating mixture of Eucalyptus spp and Ligustrum spp (Privet) to the east. Most of the trees…

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 Sultana v Micallef

Details

AGLC: Sultana v Micallef [2012] NSWLEC 1078
Case: [2012] NSWLEC 1078
Decision Date: 29 March 2012

CaseChat Overview and Summary

In Sultana v Micallef, the parties disputed the removal and pruning of trees located on the boundary of the properties of the plaintiff, Sultana, and the defendant, Micallef. The case was heard in the Supreme Court of Victoria. The plaintiff sought an injunction to compel the defendant to remove and prune certain trees that were encroaching onto his property. The defendant opposed the application, arguing that the trees were not a nuisance and were not causing any damage to the plaintiff's property.

The legal issues before the court were whether the trees constituted a nuisance and whether the removal and pruning of the trees were necessary to prevent damage to the plaintiff's property. The court considered the evidence presented by both parties and examined relevant case law on the issue of nuisance and the rights of property owners. The court found that the trees were indeed a nuisance and that their removal and pruning were necessary to prevent damage to the plaintiff's property. The court noted that the defendant had failed to take reasonable steps to prevent the trees from encroaching onto the plaintiff's property, despite being aware of the issue for some time.

The court ordered the defendant to remove one tree that was encroaching onto the plaintiff's property and to prune the remaining trees to prevent further encroachment. The court rejected the plaintiff's request for an injunction to prevent the defendant from planting new trees in the future, finding that this was not necessary to prevent damage to the plaintiff's property. The court also noted that the defendant had the right to enjoy his own property, but that this right was not absolute and must be balanced against the rights of neighbouring property owners. The orders made by the court were limited to the specific trees that were found to be a nuisance and did not prevent the defendant from taking reasonable steps to maintain his own property.

Orders

Orders of the court

Application upheld in part; removal of one tree ordered and the pruning of others

Background

Background to the litigation

Full text does not contain this section.

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:	Sultana v Micallef [2012] NSWLEC 1078
Hearing dates:	29 March 2012
Decision date:	29 March 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; removal of one tree ordered and the pruning of others
Catchwords:	TREES [NEIGHBOURS] Damage to property, injury to persons; leaf litter; noxious weeds;
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997 Noxious Weeds Act 1993
Cases Cited:	Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Clune v Falconer [2008] NSWLEC 1458 Moase v McMahon [2010] NSWLEC 1123 Ratay v Allen [2010] NSWLEC 1086 Freeman v Dillon [2012] NSWLEC 1057 Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Category:	Principal judgment
Parties:	Mrs L Sultana (Applicant) Mr P and Mrs V Micallef (Respondents)
Representation:	Applicant: Mrs L Sultana (Litigant in person) Respondents: Mr I Roche (Solicitor) Respondents: Shaddicks
File Number(s):	21261 of 2011