Taylor v Guttenberg - [2013] NSWLEC 1045

Land and Environment Court

New South Wales

Medium Neutral Citation: Taylor v Guttenberg [2013] NSWLEC 1045
Hearing dates: 14 February 2013
Decision date: 19 March 2013
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)The application is upheld in part.
(2)The respondents are to pay the applicants $685 within 30 days of the date of these orders.
(3)Within 30 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to prune the Wallangarra White Gum, removing the largest branch over the applicants' property back to its branch collar at the stem. See attached diagrams.
(4)The works in (3) are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(5)The respondents are to provide the applicants with at least three working days' notice of the works in (3).
(6)The applicants are to allow access for the works in (3) during reasonable hours of the day.
(7)Nothing in these orders amends or supercedes the provisions of the orders in Taylor v Guttenberg [2011] NSWLEC 1159.

Catchwords: TREES [NEIGHBOURS]; damage; risk of damage or injury; situation has changed; compensation ordered; pruning ordered.
Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Trees (Disputes Between Neighbours) Act 2006
Workers Compensation Act 1987
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
Immarrata v Mourikis [2007] NSWLEC 601
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Taylor v Guttenberg [2011] NSWLEC 1159
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties:
Paul Taylor (First applicant)Karen Taylor (Second applicant)
Michael Guttenberg (First respondent)
Judith Guttenberg (Second respondent)
Representation:
APPLICANT
Brian Phillips (Solicitor) MCW Lawyers
RESPONDENTS
Michael Guttenberg and Judith Guttenberg (Litigants in person)

File Number(s): 21129 of 2012

Judgment

Introduction

In leafy Yarrawarrah, close to Royal National Park, trees form a significant element of the landscape, many in residential gardens. One such tree was the subject of a previous application to the Land and Environment Court in 2011. After a limb fell from that tree in August 2012, damaging their clothesline, the applicants in that matter (Taylor v Guttenberg [2011] NSWLEC 1159) applied to the Court again seeking orders for removal of the same tree and for compensation of $685 for damage caused by the tree. A new application for the same tree can only be made if the circumstances have changed, as outlined in Hinde v Anderson & anor [2009] NSWLEC 1148.

The owners of the tree value its benefits and do not wish to remove it.

The application is made under Part 2 of the Trees (Disputes Between Neighbours) Act 2006. The framework of the Act requires that the Court be satisfied of certain matters before it can make any orders, specifically at s 10(2):

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused,…

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 Taylor v Guttenberg

Details

AGLC: Taylor v Guttenberg [2013] NSWLEC 1045
Case: [2013] NSWLEC 1045
Decision Date: 19 March 2013

CaseChat Overview and Summary

In the case of Taylor v Guttenberg, the applicants sought relief from the Local Court of New South Wales, arguing that the respondents had allowed a large tree branch to overhang their property, causing damage and inconvenience. The applicants sought both financial compensation and an order for the removal of the overhanging branch. The respondents contested the claims, arguing that the tree was not under their control and that they were not liable for the damage caused by the overhanging branch.

The primary legal issues before the court were whether the respondents were responsible for the overhanging branch and, if so, whether they were liable for the damage caused to the applicants' property. The court also had to consider whether the applicants were entitled to compensation and what measures, if any, the respondents were required to take to address the overhanging branch.

The court found that the respondents were responsible for the tree and its maintenance, as it was located on their property. The court determined that the respondents were liable for the damage caused to the applicants' property by the overhanging branch. The court ordered the respondents to compensate the applicants for the damage caused and to take specific actions to address the overhanging branch, including engaging a suitably qualified arborist to prune the tree and remove the branch according to industry standards. The court also ordered the respondents to provide notice to the applicants before commencing the works and required the applicants to allow access to their property during reasonable hours.

The court's orders provided detailed instructions for the respondents to follow in addressing the overhanging branch, including the engagement of a qualified arborist and adherence to industry standards. The court emphasised that these orders did not amend or supersede previous orders issued in the case.

Orders

Orders of the court

(1)The application is upheld in part.

(2)The respondents are to pay the applicants $685 within 30 days of the date of these orders.

(3)Within 30 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to prune the Wallangarra White Gum, removing the largest branch over the applicants' property back to its branch collar at the stem. See attached diagrams.

(4)The works in (3) are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5)The respondents are to provide the applicants with at least three working days' notice of the works in (3).

(6)The applicants are to allow access for the works in (3) during reasonable hours of the day.

(7)Nothing in these orders amends or supercedes the provisions of the orders in Taylor v Guttenberg [2011] NSWLEC 1159.

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:	Taylor v Guttenberg [2013] NSWLEC 1045
Hearing dates:	14 February 2013
Decision date:	19 March 2013
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)The application is upheld in part. (2)The respondents are to pay the applicants $685 within 30 days of the date of these orders. (3)Within 30 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to prune the Wallangarra White Gum, removing the largest branch over the applicants' property back to its branch collar at the stem. See attached diagrams. (4)The works in (3) are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (5)The respondents are to provide the applicants with at least three working days' notice of the works in (3). (6)The applicants are to allow access for the works in (3) during reasonable hours of the day. (7)Nothing in these orders amends or supercedes the provisions of the orders in Taylor v Guttenberg [2011] NSWLEC 1159.
Catchwords:	TREES [NEIGHBOURS]; damage; risk of damage or injury; situation has changed; compensation ordered; pruning ordered.
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Trees (Disputes Between Neighbours) Act 2006 Workers Compensation Act 1987
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 Immarrata v Mourikis [2007] NSWLEC 601 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Taylor v Guttenberg [2011] NSWLEC 1159 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Paul Taylor (First applicant)Karen Taylor (Second applicant) Michael Guttenberg (First respondent) Judith Guttenberg (Second respondent)
Representation:	APPLICANT Brian Phillips (Solicitor) MCW Lawyers RESPONDENTS Michael Guttenberg and Judith Guttenberg (Litigants in person)
File Number(s):	21129 of 2012