Pietilainen v Paisley-Topp [2023] NSWLEC 1069

Land and Environment Court New South Wales

Medium Neutral Citation: Pietilainen v Paisley-Topp [2023] NSWLEC 1069 Hearing dates: 14 November 2022 Date of orders: 15 February 2023 Decision date: 15 February 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The application is granted in part. (2) Within 60 days of the date of these orders, the Respondents, at their expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to prune branches from Tree 1 and Tree 2. (3) Pruning of Tree 1 shall comprise removal of branch stubs on branches previously pruned above the back shed by the Applicant's husband, to the nearest branch collar. Branches above the Applicant's shed, within 1.5 m of the top of the shed, shall also be pruned to the nearest branch collar. (4) Pruning of Tree 2 shall comprise removal of branches overhanging the Applicant's dwelling roof to provide a clearance of 2.5 m from the roof. (5) The total volume of live foliage removed from the sum of this pruning shall not reduce the overall leaf mass of the trees by more than 15%. (6) Whilst pruning Tree 1 and Tree 2, all deadwood above 10mm diameter at the branch collar shall be removed. (7) All pruning shall conform with AS4373-2007: Pruning of amenity trees and shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (8) The Applicant shall provide all reasonable access to the Respondents' contracted arborists to complete the works and remove refuse, upon receipt of at least 72 hours' notice by email of the date and approximate start time of the tree pruning works. (9) The pruning works shall be undertaken during reasonable daytime working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – branches overhanging roof of dwelling – apprehension of damage and injury – leaves falling onto roof, gutters and hard surfaces – mould – unreasonable maintenance burden Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14C, 14E, 14F Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Tolkin v Speiser & anor [2013] NSWLEC 1225 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Shoalhaven Development Control Plan 2014, Chapter G4 Tree and Vegetation Management Standards Australia, AS4373-2007: Pruning of Amenity Trees Category: Principal judgment Parties: Riita Pietilainen (Applicant) David Paisley-Topp (First Respondent) Amber Paisley-Topp (Second Respondent) Representation: Counsel: E Neaves (Solicitor) (Applicant) D Paisley-Topp (Self represented) (First Respondent) A Paisley-Topp (Self represented) (Second Respondent)