Cloake v Nolan-Neylan [2019] NSWLEC 1105

Land and Environment Court New South Wales

Medium Neutral Citation: Cloake v Nolan-Neylan [2019] NSWLEC 1105 Hearing dates: 12 March 2019; 14 March 2019 Date of orders: 14 March 2019 Decision date: 14 March 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to carry out the following pruning works on the two trees: (a) On the southern tree remove the large limb with damage at its base, back to its branch collar at the stem (see photos at [9]); (b) Remove deadwood greater than 50 mm diameter throughout the crowns of both trees; (c) On the northern tree remove low branches with foliage touching the applicant's roof; (d) Reduce branches overhanging the applicant's property, removing no more than 10% of live foliage. (2) The works are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3) The respondent is to give the applicant two days' notice of the works. (4) The applicant is to allow access to her property necessary for carrying out the works during reasonable hours of the day. (5) If within 60 days of the date of these orders the works in order (1) are not done, the applicant has a further 60 days to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to complete the pruning works described in order (1). (6) If order (5) is engaged, within 7 days of receiving a receipted invoice for the completed pruning works in (5), the respondent is to pay the applicant the amount of that invoice. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Texts Cited: AS4373 Pruning of amenity trees WorkCover NSW Code of Practice for the Amenity Tree Industry Category: Principal judgment Parties: Melva May Cloake (Applicant) Barbara Nolan-Neylan (Respondent) Representation: K Cloake, agent (Applicant) B Nolan-Neylan, litigant in person (Respondent) File Number(s): 2018/366097 Publication restriction: No