Franco v Mazzetti [2022] NSWLEC 1090

Land and Environment Court New South Wales

Medium Neutral Citation: Franco v Mazzetti [2022] NSWLEC 1090 Hearing dates: 11 November 2021 Date of orders: 24 February 2022 Decision date: 24 February 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court Orders that: 1) The application is granted. 2) Within 45 days, and at her expense, the Respondent shall remove the tree to at least 300mm below existing ground level, ensuring that all roots emerging from the stump of the tree, to this depth, are separated from the stump. 3) The structural root growing towards and under the common boundary wall, identified in the Laws' report as being about 130mm diameter where it emerges into the Applicant's property, shall be removed to a point as close to the base of the wall as is practical, on the Respondent's side of the wall. 4) All works shall be completed by an AQF level 3 arborist, with all appropriate insurances. 5) All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. 6) All works are to be completed during normal work hours. Should access be required into the Applicant's property to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to retaining wall; excavation undertaken to expose roots; are there viable alternatives to tree removal; do benefits from tree exceed the imperative to remove it Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 ss 7, 9, 10, 12, Pt 2 Uniform Civil Procedure Rules 2005, Sch 7 Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Texts Cited: Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, April 2021 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. Standards Australia, Protection of trees on development sites, 2009 Category: Principal judgment Parties: Joe Franco (Applicant) Ozlem Mazzetti (Respondent) Representation: J Franco (Litigant in person) (Applicant) O Mazzetti (Litigant in person) (Respondent) File Number(s): 2021/236725 Publication restriction: No