Jackson v Phillips [2019] NSWLEC 1271

Land and Environment Court New South Wales

Medium Neutral Citation: Jackson v Phillips [2019] NSWLEC 1271 Hearing dates: 31 May 2019 Date of orders: 31 May 2019 Decision date: 31 May 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) Within 30 days of the date of these orders the respondents are to remove or kill all bamboo within the lower area of ground surrounding their Scribbly Gum. (This order does not apply to bamboo within the raised planter boxes.) (2) The respondents are to take any measures necessary to prevent regrowth of the bamboo within the lower area of ground surrounding their Scribbly Gum. (3) After 10 July 2019 and within 90 days of the date of these orders the respondents are to engage and pay for a suitably experienced fencing contractor with all appropriate insurance to repair the displaced section of fence on the common boundary, being the two steel panels nearest the gum tree, so that: it is in line with the remainder of the fence; it is vertical; and it matches the existing fence. No parts of the tree, including its roots, are to be damaged by these works. The bottom rail of the fence is to be located or adjusted, as necessary, to allow clearance of at least 200 mm to any part of the tree. (4) The respondents are to give the applicant seven days' notice of the works in (3). (5) The applicant is to allow any access necessary during reasonable hours of the day for the works in (3). (6) In March 2020 and in March every two years thereafter the respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune their gum tree to remove from the crown above the applicant's property all deadwood greater than 25 mm in diameter and any hazardous branches. The works are to be done in accordance with the guidelines of AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (7) The respondents are to give the applicant seven days' notice of each occasion of the works in (6). (8) The applicant is to allow any access necessary during reasonable hours of the day for each occasion of the works in (6). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – fence – risk of injury Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Texts Cited: AS4373:2007 Pruning of amenity trees Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work Category: Principal judgment Parties: Rhonda Jackson (Applicant) Mark Phillips (First Respondent) Lillian Phillips (Second Respondent) Representation: R Jackson, litigant in person (Applicant) M Phillips and L Phillips, litigants in person (Respondents) File Number(s): 2019/46581 Publication restriction: No