Vieira v Kaleski [2012] NSWLEC 1100

Land and Environment Court New South Wales

Medium Neutral Citation: Vieira v Kaleski [2012] NSWLEC 1100 Hearing dates: 22 March 2012 Decision date: 26 April 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: (1)The respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) to carry out the works in orders (2) to (7), below. All works must be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (2)The arborist is to remove trees T1 and T2 to no more than 400 mm above ground level and, if stumps remain, apply poison to the stumps immediately after cutting. (3)The arborist is to prune T4 to remove the longest limb over the dwelling back to its branch collar at the stem. (4)The arborist is to prune T5 to provide at least 3 metres of clearance to the dwelling and to remove deadwood greater than 25 mm in diameter above the applicant's property and within 2 metres of the common boundary. (5)The arborist is to prune T6 and T7 to remove deadwood greater than 25 mm in diameter above the applicant's property and within 2 metres of the common boundary; and to reduce by up to 20-30% any limbs that overhang the applicant's dwelling pruning back to suitable lateral branches where possible. (6)The arborist is to prune T3, T8, T9, T10, T11, T12 and T14 to remove deadwood greater than 25 mm in diameter above the applicant's property and within 2 metres of the common boundary and to remove any other hazardous limbs identified while carrying out these works. (7)The arborist is to prune T15 to remove the one stem that most overhangs the applicant's property. (8)The works in orders (2) to (7) are to be completed within 60 days of the date of these orders. (9)Every two years, beginning in 2014, within 30 days either side of the anniversary of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) to carry out the works in order (10) below. All works must be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (10)The arborist is to prune T3-T12 inclusive and T14 to remove deadwood greater than 25 mm in diameter above the applicant's property and within 2 metres of the common boundary and to remove any other hazardous limbs identified while carrying out these works. (11)The respondent is to give the applicant one week's notice of the works in orders (1) to (7) and orders (9) and (10). (12)The applicant is to provide all access required for the works in orders (1) to (7) and orders (9) and (10) to be carried out efficiently, including clear access along the driveway for a truck (up to 7.5 tonne when loaded, with four rear wheels) and chipper (up to 9 inch capacity) and clear access between the dwelling and the common boundary. (13)If the applicant does not provide the access ordered in (12), orders (1) to (11) are revoked. (14)Between 1 November and 20 December each year, the tree shall be thoroughly inspected for the presence of fruit by an arborist with a minimum AQF level 3 qualification and appropriate insurance. (15)The first inspection is to commence in 2012 and then annually within the time period specified in order (14). (16)Any fruit 100mm or more in diameter in any dimension is to be removed from the eastern half of the crown. The de-coning is to occur at the same time as the inspection. (17)The cost of the inspection and any de-coning is to be borne by the respondent. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; compensation dismissed; removal ordered; pruning ordered; access ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Vieira v Kaleski [2007] NSWLEC 640 Category: Principal judgment Parties: Mr Jose Vieira (Applicant)