Rizotto v Drummond [2022] NSWLEC 1431

Land and Environment Court New South Wales

Medium Neutral Citation: Rizotto v Drummond [2022] NSWLEC 1431 Hearing dates: 25 May 2022 Date of orders: 19 August 2022 Decision date: 19 August 2022 Jurisdiction: Class 1 Before: Douglas AC Decision: The Court orders: 1) The application is granted. 2) Within 45 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to remove the Jacaranda tree to near ground level, poison stump and remove all refuse. 3) Within 60 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to install a 600mm heavy plastic continuous proprietary root barrier, at least 3mm thick, to a depth of 550mm with 50mm left protruding vertically above the soil surface, from the back fence to a point on the common boundary which intersects with a north-south line cast from the eastern end of the applicant's garage/granny flat roof. The barrier shall include a 2m continuous extension southward, further back into the respondent's property along the back fence at the western end, and a 1m continuous extension southward at the eastern end. Clay subsoil used to refill the trench should be progressively compacted as heavily as possible into the trench, and up against the barrier. 4) To facilitate the works in Order 3, each party shall procure up to two quotations. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen arborist satisfying the qualification and insurance requirements of the said order. Should it be required, each party shall provide the other with access to their properties for the purpose of gaining said quotations, upon receipt of at least 48 hours written notice. 5) Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicant with a copy of an itemised paid invoice for the works. 6) Within 7 days after receipt of the paid invoice in Order 5, the applicant shall reimburse the respondents for a quantum of 50% of the cheapest of the acceptable quotations from qualified, insured arborists, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation. 7) Should any bamboo roots or culms subsequently protrude through or under the common boundary, the applicant shall notify the respondents in writing, and the respondent shall remove and poison said bamboo culms within 21 days of notification by the applicant. 8) Where access is required to complete these works, the applicant shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works. 9) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 10) All works shall be completed during normal work hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – whether tree is likely to cause damage in the near future – likelihood of damage and risk outweighs s (12) considerations – incursion of bamboo – root barrier ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 ss 7, 8, 9, 10, 12 Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 Dias v Vaswani [2011] NSWLEC 1274 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work (2016) Category: Principal judgment Parties: David Rizotto (Applicant) Helen Drummond (First Respondent) Rowan Drummond (Second Respondent) Representation: D Rizotto, self-represented (Applicant) H Drummond, self-represented (First Respondent) R Drummond, self-represented (Second Respondent) File Number(s): 2022/61514 Publication restriction: Nil