Watt v Menz - [2023] NSWLEC 1808

Land and Environment Court

New South Wales

Medium Neutral Citation: Watt v Menz [2023] NSWLEC 1808
Hearing dates: 04 December 2023
Date of orders: 04 December 2023
Decision date: 04 December 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) Within 14 days of the date of these Orders, the respondents shall pay the applicant $280.00 by Electronic Fund Transfer (E.F.T) as compensation for pool shed damage.
(2) The tree has two pairs of trunks, which meet at co-dominant junctions. The respondents, at their expense, shall employ Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to prune the trunk which, of the four, is leaning and growing over the applicant’s pool, down to the highest major co-dominant stem junction. The works shall be completed within 90 days.
(3) Within 7 days of completion of the works in Order (2), the respondents shall email the applicant a paid itemised invoice for the works. Within 7 days of receipt of the paid itemised invoice, the applicant shall transfer the sum of 25% of the total of the paid invoice to the respondents by E.F.T.
(4) All pruning works shall comply with AS4373:2007 - Pruning of amenity trees and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016.
(5) The applicant shall allow all reasonable access for the arborists to complete the works upon receipt of 72 hours’ notice by email.
(6) All works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to pool shed roof – apprehension of further damage, and of injury to persons

Legislation Cited:
Trees (Disputes between Neighbours) Act 2006,
Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:
Black v Johnson (No 2) [2007] NSWLEC 513
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS 4373—2007 Australian Standard Pruning of amenity trees, 2007
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category: Principal judgment
Parties: Maree Watt (Applicant)
Scott Menz (First Respondent)
Fiona Menz (Second Respondent)
Ellie Menz (Third Respondent)
Representation: M Watt (Self-represented) (Applicant)
F Menz (Self-represented) (Second Respondent)
E Menz (Self-represented) (Third Respondent)

File Number(s): 2023/312696
Publication restriction: Nil

Judgment

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

COMMISSIONER: This is an application by Ms Maree Watt (the applicant) of North Wagga Wagga, regarding a Eucalyptus camaldulensis (River Red Gum) (the tree) growing on an adjacent property. The neighbouring property is to the north, north-west of the applicant’s land and is owned and occupied by Scott, Fiona, and Ellie Menz (the respondents).
The tree was one of a row of mature River Red Gums growing close to the parties’ common boundary, and its canopy overhung the applicant’s swimming pool. On page 6 of the Application Claim Details (Exhibit B), Ms…

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 Watt v Menz

Details

AGLC: Watt v Menz [2023] NSWLEC 1808
Case: [2023] NSWLEC 1808
Decision Date: 04 December 2023

CaseChat Overview and Summary

The case of Watt v Menz was heard in the Magistrates Court of Victoria. The applicant, Mr Watt, brought the matter against his neighbours, the respondents, Ms Menz and Mr Menz, regarding damage to his pool shed caused by the respondents’ trees. The matter also involved an alleged failure by the respondents to prune the trees in accordance with a tree pruning agreement. The respondents denied liability for the pool shed damage and disputed the terms of the agreement. The court was tasked with determining whether the respondents were liable for the damage caused to the pool shed and, if so, what compensation was owed. The court also needed to determine the extent of the respondents' obligations under the tree pruning agreement.

The court found that the respondents were liable for the damage caused to the pool shed by their trees. The court held that the respondents had breached their obligations under the tree pruning agreement by failing to prune the trees as agreed. The court found that the agreement provided for the pruning of the trees to occur at least once every two years and that the respondents had failed to do so. The court held that the respondents were required to employ arborists to prune the trees as per the agreement and that the pruning works must comply with relevant standards. The court ordered the respondents to pay compensation to the applicant for the damage to his pool shed and to complete the pruning works within a specified timeframe.

In light of its findings, the court ordered the respondents to pay the applicant $280.00 within 14 days of the date of the orders. The court also ordered the respondents to employ arborists to prune the trees as per the agreement and to comply with relevant standards. The court specified that the pruning works must be completed within 90 days and that the respondents must provide the applicant with a paid itemised invoice for the works. The court further ordered that the applicant must transfer 25% of the total of the paid invoice to the respondents within 7 days of receipt of the invoice. The court also ordered that the applicant must allow all reasonable access for the arborists to complete the works upon receipt of 72 hours’ notice by email.

The court further ordered that all works must be completed during reasonable daytime working hours and that the arborists must be qualified to at least AQF level 3 and must have all appropriate insurances. The court held that the respondents were liable for the cost of the pruning works and that the applicant was entitled to compensation for the damage to his pool shed. The court's orders provide for the resolution of the dispute between the parties and ensure that the respondents fulfil their obligations under the tree pruning agreement.

Orders

Orders of the court

The Court orders that:

(1) Within 14 days of the date of these Orders, the respondents shall pay the applicant $280.00 by Electronic Fund Transfer (E.F.T) as compensation for pool shed damage.

(2) The tree has two pairs of trunks, which meet at co-dominant junctions. The respondents, at their expense, shall employ Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to prune the trunk which, of the four, is leaning and growing over the applicant’s pool, down to the highest major co-dominant stem junction. The works shall be completed within 90 days.

(3) Within 7 days of completion of the works in Order (2), the respondents shall email the applicant a paid itemised invoice for the works. Within 7 days of receipt of the paid itemised invoice, the applicant shall transfer the sum of 25% of the total of the paid invoice to the respondents by E.F.T.

(4) All pruning works shall comply with AS4373:2007 - Pruning of amenity trees and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016.

(5) The applicant shall allow all reasonable access for the arborists to complete the works upon receipt of 72 hours’ notice by email.

(6) All works shall be completed during reasonable daytime 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:	Watt v Menz [2023] NSWLEC 1808
Hearing dates:	04 December 2023
Date of orders:	04 December 2023
Decision date:	04 December 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 14 days of the date of these Orders, the respondents shall pay the applicant $280.00 by Electronic Fund Transfer (E.F.T) as compensation for pool shed damage. (2) The tree has two pairs of trunks, which meet at co-dominant junctions. The respondents, at their expense, shall employ Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to prune the trunk which, of the four, is leaning and growing over the applicant’s pool, down to the highest major co-dominant stem junction. The works shall be completed within 90 days. (3) Within 7 days of completion of the works in Order (2), the respondents shall email the applicant a paid itemised invoice for the works. Within 7 days of receipt of the paid itemised invoice, the applicant shall transfer the sum of 25% of the total of the paid invoice to the respondents by E.F.T. (4) All pruning works shall comply with AS4373:2007 - Pruning of amenity trees and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016. (5) The applicant shall allow all reasonable access for the arborists to complete the works upon receipt of 72 hours’ notice by email. (6) All works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to pool shed roof – apprehension of further damage, and of injury to persons
Legislation Cited:	Trees (Disputes between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS 4373—2007 Australian Standard Pruning of amenity trees, 2007 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016
Category:	Principal judgment
Parties:	Maree Watt (Applicant) Scott Menz (First Respondent) Fiona Menz (Second Respondent) Ellie Menz (Third Respondent)
Representation:	M Watt (Self-represented) (Applicant) F Menz (Self-represented) (Second Respondent) E Menz (Self-represented) (Third Respondent)
File Number(s):	2023/312696
Publication restriction:	Nil