Trees (Disputes Between Neighbours) Act 2006
Enforcement of judgment and orders of the Court
Trees (Disputes Between Neighbours) Act 2006 Enforcement of judgment and orders of the Court
Obligation to comply with Court orders
If the Land and Environment Court of New South Wales (the Court) gives judgment or makes an order under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), parties are obliged to comply with the judgment or order. Where the order is to take some specified action, and to do so within a specified period of time, parties are obliged to take the action within the time.
Failure to comply with Court orders
Failure to comply with a judgment or order of the Court may have criminal and civil consequences for the person in default. Five types of action might be able to be taken against the person in default:
(a) the local council might be requested to, and it may elect to, carry out the work ordered by the Court;
(b) criminal proceedings may be brought against the person in default for the offence of failing to comply with the order of the Court;
(c) contempt proceedings may be brought against the person in default for failure to comply with the order of the Court;
(d) the order of the Court may be enforced by committal (imprisonment) of the person in default or by sequestration of that person’s property; or
(e) civil proceedings may be brought against the person in default to enforce an obligation under the Trees Act.
Need to obtain legal advice
The Court cannot and does not advise whether any of these types of action might be available or might be successful, in the circumstances of any particular case. Parties should seek their own legal advice on their rights, obligations and duties arising out of any judgment or order of the Court and the remedies that might be available to enforce or to resist enforcement of any judgment or order of the Court in any particular case. These notes are for the purpose of providing general guidance to persons about enforcement of judgment and orders and are not a substitute for proper and specific legal advice.
Local council may carry out the work ordered
If the Court orders the tree owner to carry out work in relation to a tree, the neighbouring owner, who was the applicant for the order, may request the local council to enter the tree owner’s land, first, to ascertain whether the tree owner has carried out the work in accordance with the order and, secondly, if the tree owner has not done so, to carry out the work itself: s 17(1) and (2) of the Trees Act.
The local council is not obliged to act in either of these ways, notwithstanding receiving a request from the neighbouring owner. The local council has a discretion whether to act or not to act in these ways.
If the local council elects to act, there is a statutory procedure it must follow, including given written notice to the tree owner of its intention to enter the land (except in certain circumstances): s 17(3)-(5) of the Trees Act. The person authorised by the local council to enter the land must possess and produce on request the authority (s 17(6) of the Trees Act) and the authority must meet certain content requirements (s 17(7) of the Trees Act).
The local council may bring legal proceedings, most likely in the Local Court, to recover the reasonable costs of carrying out the work ordered from the tree owner: s 17(8) of the Trees Act.
Criminal proceedings
Failure to comply with any requirement imposed by an order of the Court under Part 2 of the Trees Act is an offence: s 15(1) of the Trees Act. The maximum penalty is 1,000 penalty units which currently translates to $110,000.
Proceedings for an offence may be taken in the Court in its summary jurisdiction: s 15(2) of the Trees Act. Proceedings are in Class 5 of the Court’s jurisdiction: s 21(hc) of the Land and Environment Court Act 1979.
Proceedings are to be commenced in the Court by summons claiming an order under s 246 of the Criminal Procedure Act 1986 in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence: Part 5 r 5.3(1) of the Land and Environment Court Rules 2007. The summons is to be accompanied by the affidavits intended to be relied on as establishing prima facie proof of the offence charged: Part 5 r 5.3(2) of the Land and Environment Court Rules 2007.
Contempt proceedings
A person who fails to comply with an order of the Court is liable to be punished for contempt. Proceedings under the Trees Act are in Class 2 of the Court’s jurisdiction: s 18(g) of the Land and Environment Court Act 1979. Part 55 (Contempt) of the Supreme Court Rules 1970, applies to proceedings in Class 2 of the Court’s jurisdiction: Part 3 r 3.9 and r 3.1 of the Land and Environment Court Rules 2007.
Where contempt is committed in connection with the proceedings by failing to comply with an order of the Court under Pt 2 of the Trees Act, an application for punishment for the contempt is to be made by motion on notice in the Class 2 proceedings in which the order was made: Part 55 r 6(1) of the Supreme Court Rules 1970. The notice of motion is to be in the approved form: Part 18 r 18.3 and Form 20: notice of motion of the Uniform Civil Procedure Rules 2005.
Any person who has a personal stake or special interest in the proceedings, such as a person who benefits from the order of the Court, may commence contempt proceedings.
A statement of charge, that is to say, a statement specifying the contempt of which the person is alleged to be guilty, is to be subscribed to, or filed with, the notice of motion: Part 55 r 7 of the Supreme Court Rules 1970. Evidence in support of the charge is to be given by affidavit unless the Court otherwise permits: Part 55 r 8(1) and (2) of the Supreme Court Rules 1970.
The notice of motion, the statement of charge and the affidavits are to be served personally on the person alleged to be charged with contempt: Part 55 r 9 of the Supreme Court Rules 1970.
Where the person is found guilty of contempt, the Court may punish the person, if the person is an individual, by committal to a correctional centre (imprisonment) or fine or both (Part 55 r 13(1) of the Supreme Court Rules 1970) or, if the person is a corporation, by sequestration or fine or both (Part 55 r 13(2) of the Supreme Court Rules 1970). In both cases, the Court may make an order for punishment on terms: Part 55 r 13(3) of the Supreme Court Rules 1970.
Other means of enforcement of Court orders
A judgment or order of the Court may also be enforced under Pt 40 Div 2 of the Uniform Civil Procedure Rules 2005 which apply to civil proceedings of the Land and Environment Court, including proceedings in Class 2 of the Court’s jurisdiction: s 4 and Sch 1 of the Civil Procedure Act 2005 and Part 1 r 1.5 and Sch 1 of the Uniform Civil Procedure Rules 2005.
Where a judgment or order of the Court requires a person to do an act within a time specified in the judgment, or forthwith, and the person fails to do the act as so required within the time, other than a judgment or order for the payment of money, the judgment or order may be enforced by, if the person is an individual, committal (imprisonment) of the person bound by the judgment or sequestration of that person’s property or both, or if the person is a corporation, by committal (imprisonment) of any officer of the corporation or sequestration of the property of any officer of the corporation or both: Part 40 r 40.6(1) and (2) of the Uniform Civil Procedure Rules 2005.
A judgment is not enforceable by these means of committal or sequestration unless a sealed copy of the judgment is served personally on the person bound and, if the judgment requires the person to do an act within a specified time, the copy is so served within that time: Part 40 r 40.7(1) and (2) of the Uniform Civil Procedure Rules 2005.
The sealed copy of the judgment must bear a notice (naming the person concerned) that the person is liable to imprisonment and sequestration of property if the person fails to comply with the judgment in any time specified: Part 40 r 40.7(3) of the Uniform Civil Procedure Rules 2005.
Service can be dispensed with in certain circumstances and by the Court: Part 40 r 40.7(4) and (5) of the Uniform Civil Procedure Rules 2005.
The procedure for enforcing a judgment or order by these means of committal or sequestration of property under Part 40 Div 2 is by motion on notice in the Class 2 proceedings in which the judgment or order was made: Part 18 r 18.1 and r 18.2 of the Uniform Civil Procedure Rules 2005. The notice of motion is to be in the approved form: Pt 18 r 18.3 and Form 20 Notice of Motion of the Uniform Civil Procedure Rules 2005. The evidence in support of the motion is to be by way of affidavit.
Enforcement of orders for the payment of money
If the Court orders payment of compensation or payment of costs associated with carrying out an order, the order can be enforced by action for recovery of the debt in the Local Court (civil claims jurisdiction) or District Court, depending on the amount of the debt.
|
|
