Simcoe v Whybin [2023] NSWLEC 1682

Land and Environment Court New South Wales

Medium Neutral Citation: Simcoe v Whybin [2023] NSWLEC 1682 Hearing dates: 13 June 2023 Date of orders: 13 June 2023 Decision date: 13 June 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) Within 90 days of the date of these orders, the respondent, at his expense, is to engage a suitably qualified (minimum AQF level 3) and experienced arborist, with appropriate insurances, to remove the Moreton Bay Fig Tree, grind the stump, and chase and grind the roots to the common property boundary, all to a depth of at least 300mm below ground level (the works). The works shall be completed within 120 days of the date of these orders. (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. (3) The respondent is to give the applicants 14 days' notice of the works. (4) The applicants are to allow any access to their property required for the works, during reasonable hours of the day. (5) Each party pay their own costs. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Fig roots damaging driveway – apprehension of future damage – tree was there first Legislation Cited: Environmental Planning and Assessment Act 1979 Port Stephens Local Environmental Plan 2013 Trees (Disputes Between Neighbours) Act 2006 Pt 2, ss 7, 8, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Hendry v Olsson [2010] NSWLEC 1302 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, July 2016 Category: Principal judgment Parties: Phillip Simcoe (First Applicant) Kylie Simcoe (Second Applicant) Phillip Whybin (Respondent) Representation: E Whittaker (Solicitor) (First and Second Applicant) S Beal (Solicitor) (Respondent)