Umlil v Smith - [2020] NSWLEC 1161

Land and Environment Court

New South Wales

Medium Neutral Citation: Umlil v Smith [2020] NSWLEC 1161
Hearing dates: 19 March 2020
Date of orders: 19 March 2020
Decision date: 19 March 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1)   Within 30 days of the date of these orders, the parties are each to obtain and swap with each other at least one quote from a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances, for pruning the tree on their common boundary as described in order (2).
(2)   Within 6 months of the date of these orders, excluding 17–19 April, the applicant is to engage the arborist with the cheapest quote from (1), or another if agreed, to prune the tree to remove dead and broken branches and to reduce the crown above the applicant’s property, removing no more than 20% of live crown mass. All pruning works must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
(3)   On reasonable notice, the respondents are to allow any access necessary for the pruning works in (2) to be completed.
(4)   Within 7 days of receiving a copy of a receipted paid invoice for the pruning works, the respondents are to pay the applicant 50% of the quoted amount.
(5)   If the parties agree to tree removal prior to the pruning ordered above, orders (1)–(4) lapse.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – risk of injury – boundary tree – whether the tree is principally on the respondents’ land – shared ownership of the tree – whether tree removal is required – respondents’ property is for sale
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Chan v McDonald [2018] NSWLEC 1692
Texts Cited: AS4373:2007 Pruning of amenity trees
Safe Work Australia 2016 “Guide to managing risks of tree trimming and removal work”
Category: Principal judgment
Parties: Fouad Umlil (Applicant)
Aurora Smith (First Respondent)
Neil Robert Smith (Second Respondent)
Representation: F Umlil (Litigant in person) (Applicant)
H Smith (Agent) (Respondents)

File Number(s): 2019/403081
Publication restriction: No

Judgment

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

Background to the application

A mature Broad-leaved Paperbark (M. quinquenervia) (‘the tree’) grows on the boundary between two properties in Caringbah South, one belonging to the Umlils (Fouad Umlil is the applicant) and the other to the Smiths (Aurora and Neil Smith are the respondents). The Smiths have lived here for some 20 years. Their property is now on the market. The Umlils have lived here for about 18 months. The 2001 development consent for their dwelling required the garage to be set back sufficiently from the tree to allow for the tree’s retention. A post-development inspection by an arborist found the tree had not been damaged by the works.
The Umlils have…

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 Umlil v Smith

Details

AGLC: Umlil v Smith [2020] NSWLEC 1161
Case: [2020] NSWLEC 1161
Decision Date: 19 March 2020

CaseChat Overview and Summary

In the case of Umlil v Smith, the parties were engaged in a dispute over the maintenance and pruning of a tree on their shared boundary. The matter was heard in the Local Court of New South Wales. The applicant sought orders for the respondent to contribute to the cost of pruning the tree and for access to the respondent’s property to facilitate the work. The legal issues that the court had to address were whether the tree was a shared responsibility and if the applicant was entitled to seek contributions from the respondent for the necessary pruning works. The court also had to consider the appropriate steps for the pruning and any interim contributions the respondent should make.

The court examined the evidence and found that the tree on the boundary was indeed shared between the parties. It was established that the tree posed a risk to the applicant's property, necessitating pruning. The court determined that the applicant was entitled to seek contributions from the respondent for the pruning costs, as both parties had a shared responsibility for the tree. Furthermore, the court ruled that the pruning works must be carried out in accordance with industry standards, including the use of qualified arborists and adherence to safety guidelines. The court concluded that the respondent should contribute financially to the cost of the pruning and provide necessary access to their property.

Consequently, the court issued several orders. The parties were required to obtain quotes from suitably qualified arborists and share these quotes. The applicant was to engage the arborist with the most affordable quote to prune the tree, ensuring compliance with industry standards. The respondent was to provide access for the pruning works and contribute 50% of the quoted amount upon receiving a receipted invoice. If the parties agreed to remove the tree instead of pruning it, the aforementioned orders would lapse. This decision effectively balanced the shared responsibility for the tree and established a clear course of action for the necessary maintenance works.

Orders

Orders of the court

The Court orders that:

(1) Within 30 days of the date of these orders, the parties are each to obtain and swap with each other at least one quote from a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances, for pruning the tree on their common boundary as described in order (2).

(2) Within 6 months of the date of these orders, excluding 17–19 April, the applicant is to engage the arborist with the cheapest quote from (1), or another if agreed, to prune the tree to remove dead and broken branches and to reduce the crown above the applicant’s property, removing no more than 20% of live crown mass. All pruning works must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

(3) On reasonable notice, the respondents are to allow any access necessary for the pruning works in (2) to be completed.

(4) Within 7 days of receiving a copy of a receipted paid invoice for the pruning works, the respondents are to pay the applicant 50% of the quoted amount.

(5) If the parties agree to tree removal prior to the pruning ordered above, orders (1)–(4) lapse.

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:	Umlil v Smith [2020] NSWLEC 1161
Hearing dates:	19 March 2020
Date of orders:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) Within 30 days of the date of these orders, the parties are each to obtain and swap with each other at least one quote from a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances, for pruning the tree on their common boundary as described in order (2). (2) Within 6 months of the date of these orders, excluding 17–19 April, the applicant is to engage the arborist with the cheapest quote from (1), or another if agreed, to prune the tree to remove dead and broken branches and to reduce the crown above the applicant’s property, removing no more than 20% of live crown mass. All pruning works must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (3) On reasonable notice, the respondents are to allow any access necessary for the pruning works in (2) to be completed. (4) Within 7 days of receiving a copy of a receipted paid invoice for the pruning works, the respondents are to pay the applicant 50% of the quoted amount. (5) If the parties agree to tree removal prior to the pruning ordered above, orders (1)–(4) lapse.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – risk of injury – boundary tree – whether the tree is principally on the respondents’ land – shared ownership of the tree – whether tree removal is required – respondents’ property is for sale
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Chan v McDonald [2018] NSWLEC 1692
Texts Cited:	AS4373:2007 Pruning of amenity trees Safe Work Australia 2016 “Guide to managing risks of tree trimming and removal work”
Category:	Principal judgment
Parties:	Fouad Umlil (Applicant) Aurora Smith (First Respondent) Neil Robert Smith (Second Respondent)
Representation:	F Umlil (Litigant in person) (Applicant) H Smith (Agent) (Respondents)
File Number(s):	2019/403081
Publication restriction:	No