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
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…
Continue reading Youman v D'Accione
Sign in free to access the full text
- AGLC
- Youman v D'Accione [2024] NSWLEC 1614
- Case
- [2024] NSWLEC 1614
- Decision Date
CaseChat Overview and Summary
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.