Vieira v Kaleski

Land and Environment Court (NSW)|2008-04-24|Before: Jagot J, Mr J, Lloyd J

CITATION : Vieira v Kaleski [2008] NSWLEC 159

APPLICANT Joe Vieira PARTIES : RESPONDENTS Anne & Peter Kaleski

KEY ISSUES: Appeal :- application to vary orders for permanent stay - no change of circumstances - application denied

APPLICANT Mr J Vieira (in person) SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENTS Ms Miranda Moody SOLICITORS Bradfield Mills Solicitors

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 This is an application to lift an order staying an order requiring the respondents to remove certain trees and to rescind an order for access under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The matter has a long and unhappy history briefly recorded below.

2 The applicant applied to the Court for an order under s 7 of the Trees Act in respect of certain trees on the western and southern boundaries of the respondents' property at 25 Lucinda Avenue, Wahroonga. Specifically, he sought orders for the removal of five coral trees and for overhanging branches of numerous eucalypt trees to be pruned to the boundaries. The applicant lives on the adjoining land to the west at 29 Lucinda Avenue, Wahroonga.

3 On 26 September 2007, Tuor C and Fakes AC ordered, relevantly, that the two most northerly coral trees along the western boundary of the respondents' property be cut down to ground level within 60 days of that order, at the respondents' expense.

4 On 16 October 2007, the respondents' solicitor, Mr Halstead, wrote to the applicant requesting access to his property for the purpose of complying with the Court's order of 26 September 2007. The applicant did not reply to that letter. Accordingly, on 23 October 2007, Mr Halstead wrote to the Court seeking a further order under s 9(2)(g) of the Trees Act for access to the applicant's land.

5 On 31 October 2007, the applicant sent an email to Mr Halstead limiting the respondents' access over his land. He imposed a number of conditions relating to access, including that the respondents could only access his land within three metres of the common boundary. The respondents had made arrangements for their consultants to access the applicant's land on 7 and 8 November 2007. As a result of the access restrictions, those arrangements were postponed. On 5 November 2007, Mr Halstead wrote to the applicant informing him of the postponement and the respondents' application to the Court for further orders under s 9(2)(g) of the Trees Act.

6 On 8 November 2007, the Court made the following order pursuant to s 9(2) of the Trees Act: The respondent's [sic] contractor for the tree removal is granted access to the applicant's property, Mr Jose Vieira, at 29 Lucinda Avenue, Wahroonga, for the purposes of carrying out the work specified in Order number 1 made by the Court on 26 September 2007; that access is to be on reasonable notice, at a reasonable hour of the day and the applicants [sic] are entitled to supervise that access.

7 On 9 November 2007, the applicant sent an email to the Court seeking to have the Court's order rescinded, on the ground that the respondents could comply with the Court's orders of 26 September 2007 without accessing the applicant's property.

8 On 12 November 2007, Mr Halstead wrote to the applicant to provide "reasonable notice" that arrangements had been made for contractors to enter the applicant's property on 22 and 23 November 2007. It appears Mr Halstead was not aware of the applicant's email to the Court of 9 November 2007 at that time.

9 On 15 November 2007, the parties appeared before Lloyd J in a directions hearing. Lloyd J refused the applicant's application to have the orders of the Court dated 8 November 2007 rescinded. His Honour suspended the Court's orders of 26 September 2007 until such time as the applicant allowed access over his property to enable the works to be carried out. He did not make any order as to costs.

10 On 18 November 2007, the applicant wrote to Mr Halstead, again imposing conditions on the time and manner of access by the respondents' contractors to his property.

11 On 22 November 2007, Mr Halstead attended the applicant's land to observe the tree removal works. In an affidavit sworn on 17 January 2008, he recorded his observations on site that a runabout boat on a trailer had been moved into a position "so as to effectively block the access from the driveway to the tree removal location". He said there were also "dozens" of sand bags stacked along the access way between the driveway and tree removal location. He said he did not observe the boat, trailer and sand bags in that location in September 2007. The respondents' tree surgeon, Mr Kerry Moore of Forest Tree Service Pty Ltd, informed Mr Halstead that the trees could not be removed while the boat and sand bags were blocking access to the tree removal location. Mr Halstead requested the applicant to remove the boat, trailer and sand bags, which the applicant refused to do.

12 On the same day, the matter was urgently listed for hearing before Lloyd J. Lloyd J permanently stayed the orders made on 26 September 2007 (relating to tree removal) and 8 November 2007 (relating to access) as a consequence of the applicant's failure to provide adequate access for the purpose of carrying out the tree removal. He also ordered the applicant to pay the costs of the respondents' appearance on that day.

13 On 21 December 2007, the parties appeared before Preston J, the Chief Judge of the Land and Environment Court. The applicant applied to reinstate the orders of 26 September 2007 and to have the stay discharged. The Court ordered the applicant to file and serve an affidavit setting out the reasons for applying to lift the stay and ordered the respondents to file and serve any affidavits in reply. The question of costs was reserved.

14 In summary, the applicant claims the following: (1) The trees are dangerous, which was acknowledged by the Court on 26 September 2007.

(2) Disputes between the parties since 26 September 2007 could have been avoided if the respondents removed the trees via their own property, without requiring access from the applicant. The Court did not deal with the issue of access on 26 September 2007, because it was obvious that access to the applicant's property would not be required.

(3) Access is not required via the applicant's property. In fact, access via the respondents' property is "wider and easier".

(4) Notwithstanding that, the applicant gave the respondents sufficient access on 31 October 2007.

(5) The Court issued access orders on 8 November 2007 without giving the applicant the opportunity to present expert evidence on the question of access.

(6) On 22 November 2007, the applicant was required to attend Court with less than two hours notice, without knowing what case he had to answer and with no opportunity to obtain expert advice, which amounted to a denial of procedural fairness.

(7) The respondents' evidence was false, misleading, constituted lies and they have acted vexatiously.

15 Attached to Mr Vieira's affidavit is a letter from Mr Andrew Adamson of Plateau Tree Service Pty Ltd dated 13 December 2007. That letter states: We are familiar with the properties at 25 and 29 Lucinda Avenue as per the attached diagram 1.

We confirm that there is ample and sufficient space for the removal of the tree cuttings via 25 Lucinda Avenue and there is no requirement to remove the trees via 29 Lucinda Avenue.

There is sufficient room to bring the truck and the shredder onto 25 Lucinda and there is clear and unobstructed access of no less than 1 metre wide through the yard between the trees and the driveway.

Conversely the removal of tree cuttings via 29 Lucinda Ave would involve the negotiation of stairs and a narrow access of 0.7m adjacent to the house that has 4 sets of large windows along the path that increases the risk of property damage.

16 The applicant has supplemented his evidence today by a quote which the applicant says proves that access is cheaper and easier via the respondents' property.

17 On 17 January 2008, Mr Halstead for the respondents swore an affidavit, which largely provides a chronology of events from the time the respondents were served with the applicant's original application under the Trees Act in June 2007 to 16 January 2008 when Mr Halstead received the applicant's affidavit. In addition to that chronology, Mr Halstead claimed the following: (1) The respondents arranged for a tree surgeon to attend their property and inspect the trees that the Court ordered to be removed. The tree surgeon advised that it would not be possible to remove the trees without access to the applicant's property. Tentative arrangements were made for the tree surgeon to conduct work on 7 and 8 November 2007.

(2) Mr Adamson, the author of the letter attached to Mr Vieira's affidavit, has not requested access to the respondents' property for the purpose of inspecting the works site.

18 On 18 January 2008, I directed the parties to attend an onsite conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act), with respect to two issues: (i) the terms of any varied order for access to the site to enable the trees to be removed; and (ii) all outstanding claims for costs, including the respondents' claim for their arborist's costs. I adjourned the applicant's application to vary the Court's orders for mention after the conciliation conference. I reserved the costs of the application and the day's appearances. The object was to give the parties an opportunity to reach agreement given the obvious common interest of the parties in ensuring dangerous trees are removed in the most timely and cost effective manner possible.

19 On 22 January 2008, Mr Moore (the respondents' tree surgeon) sent a letter to the respondents, which relevantly said: As previously discussed, there would be no difficulty in removing the two Coral trees on your rear boundary through temporary access at 29 Lucinda Avenue… This would be the simplest and most cost effective way of removing the trees.

To remove the trees via 25 Lucinda Avenue would be far more difficult, very time consuming and consequently more expensive than our original quote. …

20 On 6 March 2008, an onsite conciliation conference was conducted before Commissioner Brown pursuant to s 34 of the Court Act. The parties did not reach agreement.

21 Accordingly, the parties are before me again today. The situation is unfortunate. On the one hand, the respondents are aware that the Court found that the two coral trees on the respondents' land presented a serious risk to the safety of the occupants of 29 Lucinda Avenue. The respondents clearly are ready and willing to comply with the order for removal but are acting on the basis of advice that removal requires access over the adjoining property. Those advising them would have no reason to suggest a method of removal involving the applicant's land unless they were convinced it was necessary in all of the circumstances. On the other hand, the applicant wishes to have the trees removed for safety reasons. However, he believes that the trees can be removed without access to his property and has advice to this effect.

22 It seems to me that the history of this matter demonstrates that, although the applicant wants the trees removed, he is not willing to reach any reasonable accommodation of his neighbours to allow that to happen in the most timely and cost effective manner. I do not accept any of the applicant's characterisations of any aspect of the respondents' evidence or their conduct. In short, if the respondents' tree surgeon believed that there was any reasonable option for removal not using the applicant's land, then no doubt the tree surgeon would have so advised the respondents. The respondents have made repeated attempts to comply with the order. It is inconceivable that they would have gone to all the effort they did if there truly was an easy option for removal through their own property. If it were easier and cheaper for the respondents to remove the trees without accessing the applicant's property, undoubtedly they would have done so.

23 The applicant has already made applications to the Court to have the access order set aside. Lloyd J refused to set aside the access order and permanently stayed the tree removal order after the events of 22 November 2007. As noted, I sent the parties to a conciliation conference to give them an opportunity to make alternative access arrangements. Obviously, no such agreement could be reached. The present situation is highly unsatisfactory. The trees should undoubtedly be removed. Both parties should want that to happen and should be willing to accommodate the reasonable requirements of the other to ensure that removal occurs. I accept that removal through the respondents' land will be difficult, time consuming and expensive and using the applicant's land will be easy, relatively quick and less costly. Despite the fact that the applicant wants to the trees to be removed (and brought the proceedings to obtain an order for removal) he apparently will not or has not agreed to access in a manner acceptable to the respondents. Whatever procedural defect might have affected the Court's access order, it provided for reasonable notice, access only at a reasonable hour, and a full capacity for the applicant to supervise the works. Yet the applicant took active steps to ensure the trees could not be removed relying on that access order. Similarly, the conciliation conference gave the applicant every opportunity to reach agreement with the respondents on reasonable access arrangements yet no agreement was reached. Civilised urban life requires considerable give and take between neighbours. In this case, the applicant is the author of his current situation. He wants the benefit of the tree removal order yet is apparently unwilling to take steps to facilitate the easiest, most effective and least expensive mechanism for removal.

24 For these reasons, and as undoubtedly unsatisfactory as this situation is, I am satisfied that there has been no relevant change in circumstances since the parties appeared before Lloyd J. As such, there is no basis to vary any of the orders his Honour made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

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Judgment (42 paragraphs)

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