Lee v Elford [2024] NSWLEC 1103

Land and Environment Court New South Wales

Medium Neutral Citation: Lee v Elford [2024] NSWLEC 1103 Hearing dates: 25 October 2023 Date of orders: 11 March 2024 Decision date: 11 March 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application to remove the bamboo is granted in part, as per orders below. (2) The application to remove other trees is refused. (3) The application to replace the dividing fence is granted. (4) The application for the cost of fencing works to be borne by the respondent is refused. (5) Within 30 days of the date of these orders, the respondents, or a suitably qualified, experienced, and insured arborist or landscape contractor engaged and paid by the respondents, are to: (a) remove the ghost bamboo (B1); and (b) remove all of the slender weaver's bamboo (B2) within 50 cm (at ground level) of their eastern boundary and prune to a height of 4 metres all remaining slender weaver's bamboo (B2) within 2 metres of their eastern boundary. (6) The works in Order (5) are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. (7) The respondents are to take all reasonable measures to prevent the ghost bamboo (B1) regrowing and to prevent the slender weaver's bamboo (B2) regrowing within 50 cm (at ground level) of their eastern boundary. (8) Within 30 days of the date of these orders, the applicant and the respondents are each to obtain and swap with each other at least one but up to two quotes from fencing contractors to demolish the brick wall on or adjacent to the boundary, from its northern end to where it meets the paling fence at the south, and replace it with a capped, lightweight fence similar to those shown on pp 23 and 34 of the Freeman report (in Exhibit 1) ('the fencing works'). (9) Within 90 days of the date of these orders, the applicant is to engage the fencing contractor from the cheapest quote obtained from Order (8), or from another of the quotes if agreed to by the parties, to carry out the fencing works, with the 30% of the cost paid by the applicant and 70% of the cost paid by the respondents. (10) The applicants are to give the respondent 1 week's notice of the works in Order (9). (11) The applicant and the respondents are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders. (12) The exhibits are returned, other than Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents' trees have caused damage – whether tree removal is required – apportionment of costs of the works Legislation Cited: Dividing Fences Act 1991, ss 3, 13A Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12 Trees (Disputes Between Neighbours) Regulation 2019, s 4 Cases Cited: Ball v Bahramali [2010] NSWLEC 1334 Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson [2009] NSWLEC 1148 Texts Cited: Burwood Development Control Plan 2023 Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016) Category: Principal judgment Parties: Janet Lee (Applicant) Marie Antoinette Elford (First Respondent) Moustafa Abdul-Rahman (Second Respondent) Representation: Counsel: B Jee (Agent) (Applicant) N Maddocks (First and Second Respondents)