3141APK Pty Limited v Owner Corporation NSW SP 21340 [2021] NSWLEC 1754

Land and Environment Court New South Wales

Medium Neutral Citation: 3141APK Pty Limited v Owner Corporation NSW SP 21340 [2021] NSWLEC 1754 Hearing dates: 13 September 2021 15 October 2021 3 November 2021 Date of orders: 9 December 2021 Decision date: 09 December 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is granted. (2) Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the Ficus rubiginosa below the retaining wall at the rear of their property to no more than 200 mm above ground level and to treat the stump to prevent regrowth. The works are to be done in accordance with the guidelines of the Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work'. (3) The respondent is to give the applicant 7 days' notice of the works ordered above and is to provide the applicant with a copy of the arborist's public liability insurance. (4) The applicant is to allow any access required to complete the works ordered above during reasonable hours of the day. (5) Within 90 days of the date of these orders the respondent is to plant in a suitable location on their property a replacement tree of a species that will reach a height of at least 6 metres and a crown spread of at least 4 metres at maturity. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring tree – whether the tree has damaged the applicant's property – whether the tree must be removed to prevent further damage – whether the respondent is fully aware of the proceedings – whether the tree is principally on the respondent's land – orders for tree removal Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 6, 7, 9, 10, 12 Cases Cited: Awad v Hardie (No 2) [2010] NSWLEC 1258 Chan v McDonald [2018] NSWLEC 1692 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Texts Cited: Randwick Development Control Plan 2013 Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work' Category: Principal judgment Parties: 3141APK Pty Limited (Applicant) Owner Corporation NSW SP 21340 (Respondent) Representation: J Harrison (Agent) (Applicant) No appearance (Respondent) File Number(s): 2021/140893 Publication restriction: No