Fox v Ginsberg [2011] NSWLEC 1204

Land and Environment Court New South Wales

Medium Neutral Citation: Fox v Ginsberg [2011] NSWLEC 1204 Hearing dates: 16 June 2011 Decision date: 16 June 2011 Jurisdiction: Class 2 Before: Moore SC, Galwey AC Decision: (1)The application with respect to T2 is dismissed; (2)Noting the respondent's intention to remove T3, the application with respect to T3 is dismissed; (3)The application for removal of T1 is dismissed; (4)The brick wall and footing of the present brick wall between the applicant and respondent's property is to be disassembled and removed under the supervision of a qualified builder; (5)The respondent is to pay the costs of removing and disassembling the brick wall and fitting, cleaning the bricks so that they are capable of being re-erected; (6)The bricks are to be stored in the rear yard of the applicant's property pending reconstruction of the wall; (7)The respondent's structural engineer is to provide a plan of the replacement wall to construction certificate standard and that that plan is to be filed and served by the respondent by the close of business on 30 June; (8)The matter is set down for mention before us at 8:30am on Thursday 7 July; (9)If there are any matters concerning the adequacy of the plans, or if there has been a failure to comply with the direction to file and serve the plans, if there is no matter requiring the mention to proceed, the applicant's solicitor is to advise the Court and the respondent of this and the mention will be vacated; (10)The respondent is to construct at her cost, the planned wall in accordance with the plan provided by her structural engineer, pursuant to these directions and to clad that wall with the bricks that are removed from the existing wall, with that cladding to be on the western side of the wall facing the house owned by the applicant in Moncur Street; (11)The reconstruction of the wall and its cladding with those bricks is to be completed within 90 days of these orders; (12)The reconstruction is to be at the cost of the respondent; (13)For the purposes of access, the applicant is to give all necessary access to the respondent to carry out the terms of these orders, with such access to be on reasonable notice at a reasonable hour of the day and with the applicant having the opportunity to supervise that access if required; (14)Questions of costs are reserved; (15)In addition, the respondent is ordered to have an arborist with AQF level III qualifications and appropriate WorkCover insurances, remove all deadwood down to 20 mm in diameter at the point of attachment to the nearest trunk. (16)All deadwood is to be removed within 90 days of the date of these orders. (17)The work in (15) is to be carried out in accordance with Australian Standard 4373 of 2007 for pruning of amenity trees. (18)The deadwooding that is ordered in (15) is to be repeated at 12 monthly intervals from the date of the first removal of deadwood from each of trees T1 and T2 (noting that the order with respect to T2 is founded on s 10 (2)(b) of the Act, as is the order for deadwood removal from T1). Catchwords: Damage to property, amenity Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Barker v Kyriakidis [2007] NSWLEC 292 Category: Principal judgment Parties: J Fox (Applicant)