Stack v Kahler [2022] NSWLEC 1731

Land and Environment Court New South Wales

Medium Neutral Citation: Stack v Kahler [2022] NSWLEC 1731 Hearing dates: 23 August 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to carry out the pruning works (the works) recommended by Mr Austin at s 11.1.1 of his report dated August 2022 (Exhibit 2). The works are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work' and AS 4373–2007 'Pruning of amenity trees'. The works are to be completed within 60 days of the date of these orders. (2) Within 30 days of the date of these orders the Respondent is to engage and pay for a registered surveyor to accurately survey the base of the tree at ground level and to produce a survey plan showing the base of the tree in relation to the location of the common boundary, and the percentage of the stem's area at ground level on each property. To show the level of detail required, the Respondent is to provide the surveyor with a copy of Awad v Hardie (No 2) [2010] NSWLEC 1258 and Chan v McDonald [2018] NSWLEC 1692 prior to undertaking the survey. (3) The Respondent is to provide the Applicants with at least 2 days' notice of the works in (1) and the survey in (2). (4) The Applicants are to provide any access required to complete the works in (1) and the survey in (2) during reasonable hours of the day. (5) Within 40 days of the date of these orders, the Respondent is to send to the Applicants by registered post, and file with the Court, a copy of the survey plan from (2). (6) The matter will be relisted for any further submissions relevant to the survey outcome. (7) The exhibits are returned, other than A and 2. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring tree – risk of damage and injury – reasonable action to mitigate the risk – ownership of boundary trees – orders for pruning – orders for survey Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 4, 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: AS 4373–2007 'Pruning of amenity trees' Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work' Category: Principal judgment Parties: Barbara Stack (First Applicant) Rodney Reece (Second Applicant) Cameron Kahler (Respondent) Representation: B Stack (Self-represented) (First Applicant) R Reece (Self-represented) (Second Applicant) C Kahler (Self-represented) (Respondent) File Number(s): 2022/140944 Publication restriction: No