Kennard v Fite (No 2) [2021] NSWLEC 1456

Land and Environment Court New South Wales

Medium Neutral Citation: Kennard v Fite (No 2) [2021] NSWLEC 1456 Hearing dates: 30 July 2021 Date of orders: 9 August 2021 Decision date: 09 August 2021 Jurisdiction: Class 1 Before: Douglas AC Decision: The orders of the Court are: (1) The application is granted. (2) Within 60 days of these orders, the First Respondent and the Second Respondent must: (a) prune trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, and 10 as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is one metre below the height line, and subsequently maintain these trees at all times below the height line, where the 'height line' means a line drawn from the location of tree 6 through to the location of tree 2 through the following points: (i) RL10.32 at the location of tree 6 on the survey; and (ii) RL12.75 at the location of tree 2 on the survey. (b) The 'survey' means the 'Plan of Trees and Their Levels Affecting Part of Lot 2 in DP 804161, issue C, 11 June 2019, prepared by Stella Walter/Mepstead and Associates', and the RLs used are based on AHD, as calculated by the applicant, such that the maximum maintenance height for Tree 2 is 5.55 metres above ground level and for Tree 6, the maximum maintenance height is 5.32 metres above ground level. (c) At no stage shall any of trees 1, 1.1, 2, 3, 4, 5, 6, 7, 9, and 10 be pruned to a height lower than 4.5 metres above ground level. (d) This order also applies to any additional trees between trees 1 and 10 not identified on the survey. (3) Within 60 days of these orders, the First Respondent and the Second Respondent must: (a) Prune trees 11, 12, 13, 14, 15 and 16, as identified in figure 2 (page 4) and paragraph 12 (pages 5-8) of the Arboricultural Assessment: Tree hedge prepared by Melanie Howden and dated 6 December 2018 (the Howden Report) to a height that is no lower than 5.5 metres above the level of the waterfront deck surrounding these trees, and at all times maintain those trees so that they do not exceed 6 metres in height above the level of the waterfront deck surrounding these trees. (4) The work required under Orders 2 and 3 must be carried out: (a) at the expense of the First Respondent and the Second Respondent; and (b) using the services of a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances; and in accordance with AS4373:2007 Pruning of amenity trees and Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016. (5) The applicant is to provide all reasonable access to the respondents' contracted arborist, for the purpose of complying with these orders, upon receipt, by email or pre-paid post, of notice of the proposed date and approximate commencement time of works, at least 72 hours prior to the works commencing. (6) Should the Leyland Cypress hedge be entirely or partially removed and replaced in the future, any replacement planting must be maintained at a height no higher than that specified in Orders 2 and 3. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, s 9 Uniform Civil Procedure Rule 2005, r 36.17 Cases Cited: Kennard v Fite [2019] NSWLEC 1327 Texts Cited: AS4373:2007 Pruning of amenity trees Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Claire Kennard (Applicant) David Matthew Fite (First Respondent) Danita Rae Lowes (Second Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) J Cole (Solicitor) (Respondent)