Touma v Gerholt - [2021] NSWLEC 1320

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Touma v Gerholt [2021] NSWLEC 1320
Hearing dates: 10 March 2021
Date of orders: 7 June 2021
Decision date: 07 June 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The application to remove the tree is refused.
(2) The application for compensation is refused.
(3) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following pruning works:
(a) remove deadwood greater than 40 mm diameter from the tree’s crown;
(b) remove or reduce overextended branches in the tree’s crown above the applicant’s property, removing no more than 15% live crown mass; and
(c) remove any branches from the tree’s crown identified as hazardous while carrying out the other pruning works.
(4) The works ordered above must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.
(5) The respondent is to give the applicant 7 days’ notice of the works.
(6) The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day.
(7) The exhibits are returned, except for Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – risk of damage and injury – building near existing tree – tree removal would be disproportionate to the risk – orders for pruning

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513

Texts Cited:
AS 4373–2007 ‘Pruning of amenity trees’
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, (2016)

Category: Principal judgment
Parties: Jeanette Touma (Applicant)
Laurice Gerholt (Respondent)
Representation: J Touma (Agent) (Applicant)
B Gerholt (Agent) (Respondent)

File Number(s): 2020/348165
Publication restriction: No

Judgment

A tree grows in Rockdale

COMMISSIONER: A large Eucalyptus saligna (Sydney Blue Gum) (‘the tree’) grows in the rear garden of the Rockdale property belonging to Laurice Gerholt (‘the respondent’). At its base, the tree is close to the rear corner in the southeast of Ms Gerholt’s property. The tree’s broad crown spreads in all directions, over Ms Gerholt’s garden and above three neighbouring properties. Almost one entire quadrant of the tree’s crown extends above the property to her south, owned by Jeanette Touma (‘the applicant’).
This tall mature tree is a locally indigenous species. Its stem has a diameter of approximately one metre at chest height. Its full, healthy crown can be seen from surrounding streets.

The application

Ms Touma has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for: the tree to be removed; compensation for damage caused by…

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 Touma v Gerholt

Details

AGLC: Touma v Gerholt [2021] NSWLEC 1320
Case: [2021] NSWLEC 1320
Decision Date: 07 June 2021

CaseChat Overview and Summary

The case of Touma v Gerholt was brought before the Court by Mr Touma, who sought the removal of a tree from his neighbour's property, owned by Ms Gerholt, due to the alleged interference with his enjoyment of his property. The matter was determined by the Court, which was required to consider the dispute between the parties regarding the tree's maintenance and potential removal.

The central legal issues that the Court had to resolve involved the determination of whether the tree constituted an unreasonable interference with Mr Touma’s property, and if so, what measures should be taken to mitigate this interference. The Court also needed to assess whether compensation was warranted and what specific actions should be required of Ms Gerholt to address the concerns raised by Mr Touma.

The Court found that the tree did not constitute an unreasonable interference with Mr Touma’s property, thus denying his application for its removal. Additionally, the Court dismissed the application for compensation. However, the Court ordered that Ms Gerholt engage a qualified arborist to prune the tree in accordance with specific guidelines, ensuring the works are conducted safely and in a manner that does not excessively harm the tree. This included the removal of deadwood, overextended branches, and hazardous branches, and the adherence to relevant standards and safety guidelines. Furthermore, the Court stipulated that Ms Gerholt must provide Mr Touma with prior notice and that Mr Touma must allow reasonable access for the works to be completed.

The orders of the Court included the refusal of the application to remove the tree and for compensation, the requirement for Ms Gerholt to engage a suitably qualified arborist to prune the tree, and the imposition of specific conditions for the pruning works to be carried out, including adherence to safety and industry standards, and the provision of notice to Mr Touma.

Orders

Orders of the court

The Court orders that:

(1) The application to remove the tree is refused.

(2) The application for compensation is refused.

(3) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following pruning works:

(a) remove deadwood greater than 40 mm diameter from the tree’s crown;

(b) remove or reduce overextended branches in the tree’s crown above the applicant’s property, removing no more than 15% live crown mass; and

(4) The works ordered above must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(5) The respondent is to give the applicant 7 days’ notice of the works.

(6) The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day.

(7) The exhibits are returned, except for 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:	Touma v Gerholt [2021] NSWLEC 1320
Hearing dates:	10 March 2021
Date of orders:	7 June 2021
Decision date:	07 June 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application to remove the tree is refused. (2) The application for compensation is refused. (3) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following pruning works: (a) remove deadwood greater than 40 mm diameter from the tree’s crown; (b) remove or reduce overextended branches in the tree’s crown above the applicant’s property, removing no more than 15% live crown mass; and (c) remove any branches from the tree’s crown identified as hazardous while carrying out the other pruning works. (4) The works ordered above must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (5) The respondent is to give the applicant 7 days’ notice of the works. (6) The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day. (7) The exhibits are returned, except for Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – risk of damage and injury – building near existing tree – tree removal would be disproportionate to the risk – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513
Texts Cited:	AS 4373–2007 ‘Pruning of amenity trees’ Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, (2016)
Category:	Principal judgment
Parties:	Jeanette Touma (Applicant) Laurice Gerholt (Respondent)
Representation:	J Touma (Agent) (Applicant) B Gerholt (Agent) (Respondent)
File Number(s):	2020/348165
Publication restriction:	No