Somuncu v McDowell [2024] NSWLEC 1089

Land and Environment Court New South Wales

Medium Neutral Citation: Somuncu v McDowell [2024] NSWLEC 1089 Hearing dates: 25 August 2023 Date of orders: 01 March 2024 Decision date: 01 March 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application to remove the two trees is upheld. (2) The application for compensation is dismissed. (3) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the two fig trees to ground level and to poison their stumps within 60 days of the date of these Orders. These works are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. (4) The respondent is to give the applicants 2 days' notice of the works in (3). (5) The applicants are to engage a fencing contractor to carry out works to replace the boundary fence shared by the applicants and the respondent. The replacement fence must be timber lapped and capped, with a height of 1.8 metres. These works are to be completed within 90 days of the date that the trees are removed, with the half the cost paid by the applicants and half the cost paid by the respondent. (6) The applicants are to give the respondent 2 days' notice of the works in (5). (7) The applicants and the respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding tree removal and fencing orders. (8) The exhibits are returned, other than Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – two mature fig trees – damage to neighbouring property – to what extent the trees caused any damage – whether tree removal is required – compensation – whether damage existed when the applicants purchased their property – whether the respondent could have prevented the damage – tree removal ordered – no compensation for damage Legislation Cited: Dividing Fences Act 1991, s 13A Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12 Cases Cited: Body v Bracks [2021] NSWLEC 1614 Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181 Liang v Marsh [2011] NSWLEC 1026 Texts Cited: Hornsby Council Development Control Plan 2013 Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016) Category: Principal judgment Parties: Alper Somuncu (First Applicant) Seda Somuncu (Second Applicant) Jennifer Anne McDowell (Respondent) Representation: Counsel: G Carolan (Applicants) C Koikas (Respondent)