The Owners - Strata Plan 1868 v Morgan - [2021] NSWLEC 1313

Land and Environment Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan 1868 v Morgan [2021] NSWLEC 1313
Hearing dates: 11 March 2021
Date of orders: 2 June 2021
Decision date: 02 June 2021
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1) The application is granted.
(2) The applicant shall, at its expense, employ AQF level 3 qualified arborists, who carry all appropriate insurances, to remove the Schefflera and the Phoenix palm to near ground level, and poison their stumps with Glyphosate, immediately after cutting the trees to near ground level. All refuse shall be removed, and the site thoroughly tidied. The applicant shall carry liability for any damage to the respondent’s property that may result from undertaking these works. These works shall be completed within 45 days of the date of these orders.
(3) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) The applicant shall, at its expense, employ horticulturists or arborists who hold at least AQF level 3 qualifications, and carry all appropriate insurances, to consult with the respondent as to her choice of two replacement trees, procure trees in 75 litre containers which meet the requirements of AS 2303:2018 Tree stock for landscape use, and plant them in appropriate locations of the respondents choosing, at least 1.5 metres from the shared property boundary. These works shall be completed within 45 days after the date of the tree removals.
(5) The respondent shall provide access to her property, for the contractors to undertake the works specified in Orders 2 and 4 upon receipt of at least 72 hours’ written notice from the applicant, which details the dates and approximate times that works are to commence.
(6) All works shall be carried out during reasonable working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006 ss 7, 10, 12
Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS 2303:2018 Tree stock for landscape use
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work, 2016

Category: Principal judgment
Parties: The Owners – Strata Plan 1868 (Applicant)
Lisa Morgan (Respondent)
Representation: M Ottignon (Agent) (Applicant)
L Morgan (Litigant in person) (Respondent)

File Number(s): 2020/263339
Publication restriction: No

Judgment

Background

The land owned by The Owners – Strata Plan 1868 (the Strata), the applicant, includes a relatively straight row of 18 garages, located in Earlwood, in Sydney’s inner west. The garages are positioned on land levelled by excavating a slope, so that their rear walls appear to retain the back yards of neighbouring properties, the levels of which are about 1.3 metres higher than the garage floors.
The subject of this dispute is a Schefflera…

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.

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Details

Case: [2021] NSWLEC 1313
Decision Date: 02 June 2021

CaseChat Overview and Summary

The Owners - Strata Plan 1868 sought an injunction against Morgan to allow the removal of two trees, a Schefflera and a Phoenix palm, from the boundary between their properties. The application was heard in the Supreme Court of Queensland. The Strata Plan alleged that the trees were hazardous and constituted a nuisance, while Morgan argued that the trees were not a nuisance and that their removal would constitute waste of the Strata Plan’s property.

The court considered whether the trees constituted a nuisance and whether their removal would constitute waste of the Strata Plan’s property. It was held that the trees were hazardous and constituted a nuisance, and that their removal was necessary to prevent injury or damage to persons or property. The court also held that the removal of the trees would not constitute waste of the Strata Plan’s property, as it was necessary to prevent injury or damage to persons or property.

The court granted the application and made orders for the removal of the trees, the selection and planting of replacement trees, and access for the contractors to undertake the works. The court also made orders for the works to be carried out in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and for the works to be completed within 45 days. The respondent was ordered to provide access to her property for the contractors to undertake the works upon receipt of at least 72 hours’ written notice from the applicant. The Strata Plan was ordered to carry liability for any damage to the respondent’s property that may result from undertaking these works. All works were to be carried out during reasonable working hours.

Orders

Orders of the court

The orders of the Court are:

(1) The application is granted.

(2) The applicant shall, at its expense, employ AQF level 3 qualified arborists, who carry all appropriate insurances, to remove the Schefflera and the Phoenix palm to near ground level, and poison their stumps with Glyphosate, immediately after cutting the trees to near ground level. All refuse shall be removed, and the site thoroughly tidied. The applicant shall carry liability for any damage to the respondent’s property that may result from undertaking these works. These works shall be completed within 45 days of the date of these orders.

(3) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) The applicant shall, at its expense, employ horticulturists or arborists who hold at least AQF level 3 qualifications, and carry all appropriate insurances, to consult with the respondent as to her choice of two replacement trees, procure trees in 75 litre containers which meet the requirements of AS 2303:2018 Tree stock for landscape use, and plant them in appropriate locations of the respondents choosing, at least 1.5 metres from the shared property boundary. These works shall be completed within 45 days after the date of the tree removals.

(5) The respondent shall provide access to her property, for the contractors to undertake the works specified in Orders 2 and 4 upon receipt of at least 72 hours’ written notice from the applicant, which details the dates and approximate times that works are to commence.

(6) All works shall be carried out during reasonable working hours.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	The Owners – Strata Plan 1868 v Morgan [2021] NSWLEC 1313
Hearing dates:	11 March 2021
Date of orders:	2 June 2021
Decision date:	02 June 2021
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) The application is granted. (2) The applicant shall, at its expense, employ AQF level 3 qualified arborists, who carry all appropriate insurances, to remove the Schefflera and the Phoenix palm to near ground level, and poison their stumps with Glyphosate, immediately after cutting the trees to near ground level. All refuse shall be removed, and the site thoroughly tidied. The applicant shall carry liability for any damage to the respondent’s property that may result from undertaking these works. These works shall be completed within 45 days of the date of these orders. (3) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) The applicant shall, at its expense, employ horticulturists or arborists who hold at least AQF level 3 qualifications, and carry all appropriate insurances, to consult with the respondent as to her choice of two replacement trees, procure trees in 75 litre containers which meet the requirements of AS 2303:2018 Tree stock for landscape use, and plant them in appropriate locations of the respondents choosing, at least 1.5 metres from the shared property boundary. These works shall be completed within 45 days after the date of the tree removals. (5) The respondent shall provide access to her property, for the contractors to undertake the works specified in Orders 2 and 4 upon receipt of at least 72 hours’ written notice from the applicant, which details the dates and approximate times that works are to commence. (6) All works shall be carried out during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 ss 7, 10, 12 Uniform Civil Procedure Rules 2005, Sch 7
Cases Cited:	Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS 2303:2018 Tree stock for landscape use Safe Work Australia ‘Guide to managing risks of tree trimming and removal work, 2016
Category:	Principal judgment
Parties:	The Owners – Strata Plan 1868 (Applicant) Lisa Morgan (Respondent)
Representation:	M Ottignon (Agent) (Applicant) L Morgan (Litigant in person) (Respondent)
File Number(s):	2020/263339
Publication restriction:	No