Gowland v Ho [2021] NSWLEC 1534

Land and Environment Court New South Wales

Medium Neutral Citation: Gowland v Ho [2021] NSWLEC 1534 Hearing dates: 2 June 2021 Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application to remove T1, T3 and T4 is granted; the remainder of the application is refused. (2) Within 30 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 remove T1 (Black Bean), T3 (camellia) and T4 (camellia). The works must be done in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (3) The respondents are to give the applicants 2 days' notice of the works. (4) The applicants are to allow all access necessary for the works to be completed during reasonable hours of the day. (5) The exhibits are returned, except for Exhibits A, B and 1. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – retaining wall along boundary – whether trees have damaged the retaining wall – whether the retaining wall needs rebuilding – whether trees need to be removed – other causes of damage – whether the jurisdiction of the Trees Act extends to the entire retaining wall – acts and omissions of the applicants Legislation Cited: Conveyancing Act 1919, s 177 Dividing Fences Act 1991, ss 3, 13A Land and Environment Court Act 1979, s 22 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12 Cases Cited: Cincotta v Huang [2011] NSWLEC 1086 Moutia v Jarrett [2013] NSWLEC 1129 Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292 The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504 Yared v Glenhurst Gardens (2002) 10 BPR 19,485; [2002] NSWSC 11 Texts Cited: Ku-ring-gai Development Control Plan 2021, Pt 13 Safe Work Australia, Guide to managing risks of tree trimming and removal work, (2016) Category: Principal judgment Parties: Judith Gowland (First Applicant) Jonathan Gowland (Second Applicant) Jui Piao Ho (First Respondent) Wing Yee Iris Lui (Second Respondent) Representation: Counsel: S Simington (Solicitor) (Applicants) J Doyle (Respondents)