Youman v D'Accione - [2024] NSWLEC 1614

Land and Environment Court

New South Wales

Medium Neutral Citation: Youman v D'Accione [2024] NSWLEC 1614
Hearing dates: 4 July 2024
Date of orders: 01 October 2024
Decision date: 01 October 2024
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court orders that:
(1)   The respondent, initially at her expense, shall engage Australian Qualification Framework (AQF) level 3 arborists (the arborists) with all appropriate insurances to remove the tree to near ground level and poison the stump (the works). The works shall be completed by 31 March 2025. Should the tree reshoot, it shall be re-poisoned until it is dead.
(2)   Within 60 days of the date of these orders, the applicants and respondent shall procure and exchange one quotation for the works from contractors who satisfy the requirements of Order 1. The cheaper quotation shall be the basis for the applicants’ contribution.
(3)   Within 7 days of completion of the works, the respondent shall provide the applicants with a copy of a paid invoice for the works. Within 7 days of receipt of a paid invoice for the works, the applicants shall pay the respondent by Electronic Funds Transfer (EFT) or Bank Cheque, 33% of the cheaper quotation for the works, regardless of whether the respondent proceeded with the more expensive quotation.
(4)   The works shall comply with Safe Work Australia, Guide To Managing Risks of Tree Trimming and Removal work, 2016.
(5)   The applicant shall provide all required access for undertaking the works, subject to 72 hours’ notice from the respondent, by email.
(6)   All works shall be completed during reasonable, daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – damage to concrete strip and terracotta pipes proven – leaves, small sticks, and tree seedlings in gutters – reasonable maintenance

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12, 13, Pt 2

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Joaquim v Adamson [2009] NSWLEC 1312
McPherson v Lake [2017] NSWLEC 1081
Osborne v Hook [2008] NSWLEC 1231
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia, Guide To Managing Risks of Tree Trimming and Removal Work, 2016
Standards Australia, AS 4373-2007 Pruning of amenity trees, 2007

Category: Principal judgment
Parties: John Leslie Youman (First Applicant)
Rose Mary Youman (Second Applicant)
Madalena Serena D'Accione (Respondent)
Representation: J Youman (Self-represented) (First Applicant)
R Youman (Self-represented) (Second Applicant)
M D'Accione (Self-represented) (Respondent)

File Number(s): 2024/157404
Publication restriction: Nil

Judgment

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by John Leslie Youman and Rose Mary Youman, proposing the Court make orders for the removal of an Acer negundo ‘Variegatum’ (Variegated Box Elder) (the tree) from a neighbouring property.

Background

Mr and Mrs Youman, the applicants, have owned and occupied a…

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 Youman v D'Accione

Details

AGLC: Youman v D'Accione [2024] NSWLEC 1614
Case: [2024] NSWLEC 1614
Decision Date: 01 October 2024

CaseChat Overview and Summary

The case of Youman v D'Accione was brought before the court to resolve a dispute concerning a tree on the boundary between the parties’ properties. The applicants, Mr and Mrs Youman, sought an order for the removal of a large tree which they alleged was a nuisance and posed a risk to their property and health. The respondents, Mr and Mrs D’Accione, owners of the tree, contested the claim and argued that the tree was not a nuisance and that the applicants’ concerns were exaggerated. The matter was heard in the Local Court of New South Wales.

The primary legal issue before the court was whether the tree constituted a nuisance and, if so, what remedy should be granted. The court needed to consider whether the tree was indeed a nuisance, what measures could be taken to mitigate any harm, and the division of costs for such measures between the parties. Additionally, the court had to determine the appropriate method for the removal of the tree and who should bear the costs associated with this process.

The court found that the tree did constitute a nuisance, given its size, the risk it posed to the applicants’ property, and its potential to cause harm. The court recognised the applicants’ concerns and agreed that the tree needed to be removed. The court also emphasised the importance of following safe work practices as outlined in the Safe Work Australia guidelines. In relation to the costs, the court ordered that the respondents would be responsible for engaging qualified arborists to carry out the works, but the applicants would contribute a percentage based on the cheaper quotation. The court mandated specific timelines and methods for the removal and payment process to ensure fairness and efficiency.

In summary, the court granted the applicants’ request for the removal of the tree and set out a detailed plan for the works to be undertaken. The court ordered that the respondents would bear the primary cost of the removal, with the applicants contributing based on a percentage of the cheaper quotation for the works. The court further specified the timeline, access requirements, and compliance with safety guidelines. The final orders were made to ensure the effective and safe removal of the tree, as well as the fair division of costs between the parties.

Orders

Orders of the court

The Court orders that:

(1) The respondent, initially at her expense, shall engage Australian Qualification Framework (AQF) level 3 arborists (the arborists) with all appropriate insurances to remove the tree to near ground level and poison the stump (the works). The works shall be completed by 31 March 2025. Should the tree reshoot, it shall be re-poisoned until it is dead.

(2) Within 60 days of the date of these orders, the applicants and respondent shall procure and exchange one quotation for the works from contractors who satisfy the requirements of Order 1. The cheaper quotation shall be the basis for the applicants’ contribution.

(3) Within 7 days of completion of the works, the respondent shall provide the applicants with a copy of a paid invoice for the works. Within 7 days of receipt of a paid invoice for the works, the applicants shall pay the respondent by Electronic Funds Transfer (EFT) or Bank Cheque, 33% of the cheaper quotation for the works, regardless of whether the respondent proceeded with the more expensive quotation.

(4) The works shall comply with Safe Work Australia, Guide To Managing Risks of Tree Trimming and Removal work, 2016.

(5) The applicant shall provide all required access for undertaking the works, subject to 72 hours’ notice from the respondent, 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:	Youman v D'Accione [2024] NSWLEC 1614
Hearing dates:	4 July 2024
Date of orders:	01 October 2024
Decision date:	01 October 2024
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court orders that: (1) The respondent, initially at her expense, shall engage Australian Qualification Framework (AQF) level 3 arborists (the arborists) with all appropriate insurances to remove the tree to near ground level and poison the stump (the works). The works shall be completed by 31 March 2025. Should the tree reshoot, it shall be re-poisoned until it is dead. (2) Within 60 days of the date of these orders, the applicants and respondent shall procure and exchange one quotation for the works from contractors who satisfy the requirements of Order 1. The cheaper quotation shall be the basis for the applicants’ contribution. (3) Within 7 days of completion of the works, the respondent shall provide the applicants with a copy of a paid invoice for the works. Within 7 days of receipt of a paid invoice for the works, the applicants shall pay the respondent by Electronic Funds Transfer (EFT) or Bank Cheque, 33% of the cheaper quotation for the works, regardless of whether the respondent proceeded with the more expensive quotation. (4) The works shall comply with Safe Work Australia, Guide To Managing Risks of Tree Trimming and Removal work, 2016. (5) The applicant shall provide all required access for undertaking the works, subject to 72 hours’ notice from the respondent, by email. (6) All works shall be completed during reasonable, daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – damage to concrete strip and terracotta pipes proven – leaves, small sticks, and tree seedlings in gutters – reasonable maintenance
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12, 13, Pt 2
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Joaquim v Adamson [2009] NSWLEC 1312 McPherson v Lake [2017] NSWLEC 1081 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia, Guide To Managing Risks of Tree Trimming and Removal Work, 2016 Standards Australia, AS 4373-2007 Pruning of amenity trees, 2007
Category:	Principal judgment
Parties:	John Leslie Youman (First Applicant) Rose Mary Youman (Second Applicant) Madalena Serena D'Accione (Respondent)
Representation:	J Youman (Self-represented) (First Applicant) R Youman (Self-represented) (Second Applicant) M D'Accione (Self-represented) (Respondent)
File Number(s):	2024/157404
Publication restriction:	Nil