The Owners – Strata Plan No 50747 v Zavetsanos [2024] NSWLEC 1671

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 50747 v Zavetsanos [2024] NSWLEC 1671 Hearing dates: 23 August 2024 Date of orders: 23 October 2024 Decision date: 23 October 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is granted to the extent of the following orders. (2) The respondents are to engage a contractor to carry out the following works within 60 days of the date of these orders, and thereafter in November each year while bamboo in Tree 1 or Tree 2 remains on their property: (a) Remove all parts of bamboo in both Tree 1 and Tree 2, above and below ground, where the bamboo at ground level is within 600 mm on either side of the dividing fence shared with the applicant; (b) Reduce the height of the bamboo in both Tree 1 and Tree 2 so that no part of the bamboo is above floor level of the third level balconies of the applicant's building ('W3,V3' in photographs on p 2 of Form G, in Exhibit A, for reference). This can be done by pruning the bamboo at or below that height, or by removing near ground level any culms that extend above that height; (c) Remove near ground level any bamboo culms in both Tree 1 and Tree 2 that overhang or touch the dividing fence shared with the applicant. (3) The works in (2) are to be carried out by a suitably insured and qualified arborist or horticulturist (minimum AQF level 3 in arboriculture or horticulture) and must be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. (4) The respondents are to give the applicant at least one week's notice of each event of the works in (2). (5) The applicant is to allow all access necessary for completion of each event of the works in (2) during reasonable hours of the day. (6) Within 120 days of the date of these orders the respondents are to rectify parts of the dividing fence shared with the applicant where the fence is within 4 metres of any bamboo in Tree 1 and Tree 2. The fence rectification works must ensure the fence is vertical, straight and sturdy, and is a sufficient dividing fence. (7) Within 120 days of the date of these orders the respondents are to install, between any remaining bamboo in Tree 1 and Tree 2 and the dividing fence, a suitable root barrier to a depth of at least 600 mm, at least 500 mm from the dividing fence shared with the applicant. The root barrier must extend for at least 500 mm beyond each end of the clump. The top of the root barrier must remain exposed above the soil. (8) The exhibits are returned, other than exhibits A, B, C and D. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring bamboo – damage to property – whether the trees have caused or are likely to cause damage – Pt 2A application – neighbouring bamboo – obstruction of sunlight and views – whether the obstruction is severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 8, 9, 10, 12, Pt 2A, ss 14A, 14B, 14D, 14E, 14F Cases Cited: Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 Texts Cited: Leichhardt Development Control Plan 2013 Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Statement of Significance for Area 18 Annandale Conservation Area, Inner West Council Category: Principal judgment Parties: The Owners – Strata Plan No 50747 (Applicant) Harry Zavetsanos (First Respondent) Natasha Leist (Second Respondent) Representation: Counsel: R Ashley (Agent) (Applicant) H Zavetsanos (Self-represented) (First Respondent) N Leist (Self-represented) (Second Respondent) File Number(s): 2024/204994 Publication restriction: Nil