Bhuta v Cefai [2023] NSWLEC 1330

Land and Environment Court New South Wales

Medium Neutral Citation: Bhuta v Cefai [2023] NSWLEC 1330 Hearing dates: 22 February 2023 Date of orders: 22 February 2023 Decision date: 22 February 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders are: (1) Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 arborists, with all appropriate insurances, to prune Weeping Fig branches overhanging the respondents' land so as to raise the height of the Weeping Fig's canopy by approximately 2 metres, and prune branches of the Japanese Photinia growing against and towards the common boundary fence, to provide a clearance of at least 200mm between the Japanese Photinia branches and the fence. (2) Within 60 days of the date of these orders, the respondents, at their expense, shall employ a licenced landscape gardener, with all appropriate insurances, to top dress the area where Weeping Fig roots are present in the respondents' lawn with an 80:20 sand:soil mix to cover the roots by 10mm and provide a relatively flat, useable surface. (3) Within 90 days of the date of these orders, the respondents, at their expense, shall employ a fencing contractor or licenced landscape gardener, with all appropriate insurances, to replace the fence panel bowed by the Weeping Fig roots. This fence panel will need to be shortened from standard dimensions to provide a gap of approximately 20mm between the bottom plate of the fence panel and the top of the Weeping Fig roots. (4) All pruning shall be completed in accordance with AS 4373:2007 Pruning of amenity trees and Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016. (5) The applicants shall provide access for the respondents' contractors to complete the various works upon receipt of at least 72 hours' notice by email, of the date and approximate start time of the works. (6) All works shall be completed during reasonable daytime working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property – no risk of injury found Legislation Cited: Dividing Fences Act 1991, s 13A Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 16, 17 Cases Cited: Dias v Vaswani [2011] NSWLEC 1274 Jones v Shelley & anor [2016] NSWLEC 1037 Kitching v Shelley & anor [2016] NSWLEC 1036 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452 Wazrin Pty Ltd v Pearson No 2 [2010] NSWLEC 1020 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Australian Standards, AS 4790-2009, Protection of trees on development sites Australian Standards, AS 4373:2007 Pruning of amenity trees Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016 Sydney Water, Tech guidelines Building over adjacent pipe assets Category: Principal judgment Parties: Arun Bhuta (First Applicant) Anita Bhuta (Second Applicant) Martin Cefai (First Respondent) Rita Cefai (Second Respondent) Representation: Counsel: A Bhuta (Self-represented) (First Applicant) A Bhuta (Self-represented) (Second Applicant) C Koikas (Respondent)