Cain v Mitchell [2018] NSWLEC 1694

Land and Environment Court New South Wales

Medium Neutral Citation: Cain v Mitchell [2018] NSWLEC 1694 Hearing dates: 20 December 2018 Date of orders: 31 January 2019 Decision date: 20 December 2018 Jurisdiction: Class 2 Before: Douglas AC Decision: The orders of the Court are: (1) Tree T1 and T2 are to be removed, along with all roots overlapping and within 150 mm of the boundary, at the respondent's expense. (2) Whilst removing T2, any fronds from T3 and T4, currently impacting, or likely to impact the applicants' house in the near future, shall be removed at the respondent's expense. (3) Branches from T5 should be pruned back to branch collars so the overhang is approximately in line with the bottom storey roof line. This work is at the applicants' expense. (4) Branches from T6 should be pruned back to branch collars approximately in line with the property boundary. This work is also at the applicants' expense. (5) All tree work shall be undertaken by AQF level 3 qualified arborist, meet Safework NSW Work, Health and Safety guidelines, and comply with AS 4373-2007 Australian Pruning Standard. These works will likely require access to both properties, and such access is to be provided during reasonable working hours, subject to 24 hours written notice being provided. (6) With respect to the front masonry wall, Mr and Mrs Cain are to seek three written builder's quotes for replacement of the approximately 800mm tall single brick boundary wall, to be constructed on a 'like for like' basis on the existing foundations. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes. (7) With respect to the timber paling fence, Mr and Mrs Cain are to seek three written builder's quotes for replacement of the front half (approximately) of the paling fence, plus replacement of palings in the rear half on a 'need' basis. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes. (8) With respect to abrasive damage and corrosion to the metal deck roof, rather than replacement, Mr and Mrs Cain are to seek three written quotes from appropriate paint specialists for repair. The quotes are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 100% of the lowest price for these repairs within 48 hours of receipt of these quotes. (9) Upon receipt of these orders, Ms Mitchell is to provide contact details including email address to Mr and Mrs Cain, and transmission of quotes to this email address shall be deemed as providing them to Ms Mitchell. (10) If the respective quotes are not provided to Ms Mitchell within 60 days of the date of these orders, orders (6)-(8) will lapse. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; apprehension of injury; tree removal and compensation sought Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Bentley v Hinchen [2008] NSWLEC 1348 Missenden v Thompson & anor [2012] NSWLEC 1226 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Zhang & anor v Long & anor [2007] NSWLEC 632 Texts Cited: AS 4373-2007 Australian Pruning Standard Safework NSW Work, Health and Safety guidelines Category: Principal judgment Parties: Nicholas Cain (First Applicant) Susan Cain (Second Applicant) Louise Mitchell (Respondent) Representation: Counsel: J Farrell (Respondent)