Fell v Brasier [2021] NSWLEC 1666

Land and Environment Court New South Wales

Medium Neutral Citation: Fell v Brasier [2021] NSWLEC 1666 Hearing dates: 19 August and 20 September 2021 Date of orders: 2 November 2021 Decision date: 02 November 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is granted to the extent of the following orders. (2) 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 prune the two Angophora costata identified as T1 and T2 in the report of Kyle Hill dated 13 July 2021 as follows: (a) reduce overextended branches above the applicant's property, reducing their crowns by up to 10% total crown mass; (b) remove deadwood greater than 30mm in diameter from the trees' crowns above the applicant's property. (3) Pruning works ordered in (2) 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. (4) The respondent is to give the applicant 2 days' notice of the works. (5) The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day. (6) The exhibits are returned other than A and B. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – number of trees unclear in application – application for two trees – whether both trees should be included in this decision – whether trees have caused damage – whether further damage or injury is likely – orders made for further tree assessment and report – whether trees should be removed or pruned – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12 Uniform Civil Procedure Rules 2005, r 31.23 Cases Cited: Yang v Scerri [2007] NSWLEC 592 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: Christopher Fell (Applicant) Lyndall Brasier (Respondent) Representation: C Fell (Litigant in Person) (Applicant) L Brasier (Litigant in Person) (Respondent) File Number(s): 2021/123599 Publication restriction: No