Touma v Gerholt [2021] NSWLEC 1320

Land and Environment Court New South Wales

Medium Neutral Citation: Touma v Gerholt [2021] NSWLEC 1320 Hearing dates: 10 March 2021 Date of orders: 7 June 2021 Decision date: 07 June 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that: (1) The application to remove the tree is refused. (2) The application for compensation is refused. (3) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following pruning works: (a) remove deadwood greater than 40 mm diameter from the tree's crown; (b) remove or reduce overextended branches in the tree's crown above the applicant's property, removing no more than 15% live crown mass; and (c) remove any branches from the tree's crown identified as hazardous while carrying out the other pruning 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 respondent is 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 during reasonable hours of the day. (7) The exhibits are returned, except for Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – risk of damage and injury – building near existing tree – tree removal would be disproportionate to the risk – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Texts Cited: AS 4373–2007 'Pruning of amenity trees' Safe Work Australia, 'Guide to managing risks of tree trimming and removal work', (2016) Category: Principal judgment Parties: Jeanette Touma (Applicant) Laurice Gerholt (Respondent) Representation: J Touma (Agent) (Applicant) B Gerholt (Agent) (Respondent) File Number(s): 2020/348165 Publication restriction: No