Kwan v Wilbraham [2024] NSWLEC 1581

Land and Environment Court New South Wales

Medium Neutral Citation: Kwan v Wilbraham [2024] NSWLEC 1581 Hearing dates: 19 June 2024 Date of orders: 23 September 2024 Decision date: 23 September 2024 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The respondents, at their expense, shall employ a roofing contractor, with public liability insurance of at least $10,000,000.00, to supply and fit two new gutter clips and refit one existing gutter clip, to the applicant's side gutter. Mr Wilbraham may undertake these works, provided he meets the insurance requirements of Order 1, and provides a copy of his Insurance Certificate of Currency to the applicant, prior to undertaking the works. (2) The respondents, at their expense, shall engage Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances, to prune the two lowest branches from T1 which are growing towards Ms Kwan's side neighbour's land, to their branch collars. (3) The works in Orders 1 and 2 shall be completed within 60 days of the date of these orders. (4) All tree works shall comply with Safe Work Australia, 'Guide to managing risks of tree trimming and removal work', 2016, and Australian Standard, AS 4373:2007, Pruning of amenity trees. (5) The applicant shall provide all required access for undertaking the works in Orders 1 and 2, subject to 72 hours' notice from the respondents, by email. (6) All works shall be completed during reasonable, daytime working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of injury – damage minor and easily repaired – considerations under s 12 Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12 Cases Cited: McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS 4373:2007, Pruning of amenity trees Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Category: Principal judgment Parties: Wai King Kwan (Applicant) Blake Eric Wilbraham (First Respondent) Abbey Rose Livingston (Second Respondent) Representation: W Kwan (Self-represented) (Applicant) B Wilbraham (Self-represented) (First Respondent) A Livingston (Self-represented) (Second Respondent) File Number(s): 2024/151221 Publication restriction: Nil