Johnson v Kaushik [2024] NSWLEC 1374

Land and Environment Court New South Wales

Medium Neutral Citation: Johnson v Kaushik [2024] NSWLEC 1374 Hearing dates: 26 March 2024 Date of orders: 03 July 2024 Decision date: 03 July 2024 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court Orders that: (1) The respondents, at their expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land, and overhanging the respondents' land within 1 m of the common boundary. The arborists shall also selectively prune four live branches, as follows: (a) The two lowest branches arise at a junction about 2.2 m above ground level. When facing the tree from the applicants' land, the branch on the right-hand side which extends over the applicants' back yard shall be removed. (b) The branch on the left-hand side, the larger of the two, shall be retained, but one secondary branch about 45mm at the branch collar, growing towards the dwelling roof from the primary branch, shall be removed. (c) Two branches growing over the dwelling roof which emerge from the primary trunk at a height of about 5-5.3 m, and with collar sizes of about 110 and 65 mm respectively, shall be removed. (2) The works in Order 1 shall be completed within 60 days of the date of these orders. (3) In 2025 and in every subsequent year, during the month that the works in Order 1 were completed, the respondents, at their expense, shall employ arborists who meet the requirements of Order 1, to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land and overhanging the respondents' land within 1 m of the common boundary. (4) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours. (5) The applicants shall provide all reasonable access to their property for undertaking the works upon receipt of at least 72 hours' notice from the respondents or the respondents' agent by email, advising the date and approximate start time. Copies of the arborists' qualifications and insurance Certificates of Currency shall be attached to each email. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree with copious deadwood – apprehension of damage and injury – sticks and leaves falling onto dwelling roof and back yard Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12, Pt 2 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Standards Australia, AS4373-2007: Pruning of amenity trees Category: Principal judgment Parties: Christine Johnson (First Applicant) Trevor Lees (Second Applicant) Raj Kumar Kaushik (First Respondent) Alka Rani Kaushik (Second Respondent) Representation: C Johnson (Self-represented) (First Applicant) T Lees (Self-represented) (Second Applicant) R Kaushik (Non-appearance) (First Respondent) A Kaushik (Non-appearance) (Second Respondent) File Number(s): 2024/26016 Publication restriction: Nil