Dunn v Slattery [2024] NSWLEC 1331

Land and Environment Court New South Wales

Medium Neutral Citation: Dunn v Slattery [2024] NSWLEC 1331 Hearing dates: 6 March 2024 Date of orders: 17 June 2024 Decision date: 17 June 2024 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) Within 90 days of the date of these orders, the respondent, at her expense, shall replace 6 posts and four panels of the common boundary fence, comprising the 2nd to the 7th post inclusive and the 3rd panel to the 6th panel inclusive, when considered from the fence's eastern end. The design of fence panels in alignment with trunks and roots of the trees shall be modified to accommodate the trees' existing basal flare and future trunk development. (2) In conjunction with the works in Order (1), the respondent, at her expense, shall employ an Australian Qualification Framework (AQF) level 5 arborist with appropriate insurances, to supervise or undertake excavation of all fence post holes, determine and approve the design of modified fence panels, and collaborate with fencing contractors with respect to the installation of modified fence panels. (3) Within 90 days of the date of these orders, the applicant, at his expense, shall replace the 8th panel of the common boundary fence when considered from the fence's eastern end. (4) Prior to any excavation, compaction, alteration of soil level, or any other construction activity within the Tree Protection Zones (per the Arborist Report from Michael Marley of Bellevue Tree Consultants, dated 2 March 2024), the applicant, at his expense, shall employ an AQF level 5 arborist with appropriate insurances to supervise all construction activity within the Tree Protection Zones, including the concreting. Should Mr Dunn prefer to employ an AQF level 5 arborist other than Mr Marley, Mr Dunn's chosen arborist shall be subject to prior approval by the respondent. (5) Should access be required to the other party's property to undertake works, each party shall provide all reasonable access, subject to at least 72 hours notice by email, advising the date and approximate start time of the works. (6) The works shall be completed during reasonable daytime working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – current and likely near future dividing fence damage – fence repair and tree protection measures ordered Legislation Cited: Dividing Fences Act 1991, s 13A Environmental Planning and Assessment Act 1979 Heritage Act 1977 Trees (Disputes Between Neighbours) Act 2006 Pt 2, Pt 2A, ss 6, 7 , 8, 9, 10, 12, 13, 14C Uniform Civil Procedures Rules 2005, s 7 Cases Cited: Ball v Bahramali & anor [2010] NSWLEC 1334 Dive v Lin & anor [2017] NSWLEC 1348 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Standards Australia AS 4373:2007 Pruning of amenity trees Standards Australia, AS 4970:2009 Protection of trees on development sites, March 2010 Central Coast Development Control Plan 2022 Gosford Development Control Plan 2013 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Category: Principal judgment Parties: David Dunn (Applicant) Rhonda Slattery (Respondent) Representation: Counsel: D Dunn (Self-represented) (Applicant) R Slattery (Self-represented) (Respondent) File Number(s): 2023/460195 Publication restriction: Nil