Guirgis v Rothery [2021] NSWLEC 1304

Land and Environment Court New South Wales

Medium Neutral Citation: Guirgis v Rothery [2021] NSWLEC 1304 Hearing dates: 8 March 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that: (1) The application is granted to the extent of the following orders. (2) Within 7 days of the date of these orders the respondents are to give the neighbour immediately to their north a copy of these orders. (3) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works: (a) Remove deadwood >35 mm diameter from Tree 1 and from the parts of Tree 2's crown above the applicant's and respondents' properties; (b) Carry out an aerial inspection of Trees 1 and 2 and remove any hazardous limbs from Tree 1 and from the parts of Tree 2's crown above the applicant's and respondents' properties; (c) Remove any borers that can be located in the respondents' side of Tree 2's lower stem; (d) Prepare a brief report outlining the completed works. (4) The works ordered above must be done in accordance with AS 4373 'Pruning of amenity trees' and the 2016 Safe Work Australia 'Guide to managing risks of tree trimming and removal work'. (5) The respondents are to give the applicant 7 days' notice of the works. (6) The applicant is to allow all access necessary for the works to be completed. (7) Within 7 days of completion of the works, the respondents are to give the applicant a copy of the report from order (3)(d) above. (8) The exhibits are returned, except for Exhibits A and E. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage not demonstrated – risk of injury – one tree on a boundary – orders for pruning and inspection Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Fang v Li [2017] NSWLEC 1503 Texts Cited: Australian Standard: AS2870 Residential Slabs & Footings Australian Standard: AS4373 Pruning of Amenity Trees Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work Category: Principal judgment Parties: Germin Guirgis (Applicant) Andrew Rothery (First Respondent) Simone Rothery (Second Respondent) Representation: D Ceccattini (Solicitor) (Applicant) T Poisel (Respondents)