Tsoukatos v Hirst [2019] NSWLEC 1318

Land and Environment Court New South Wales

Medium Neutral Citation: Tsoukatos v Hirst [2019] NSWLEC 1318 Hearing dates: 29 May 2019 Date of orders: 21 June 2019 Decision date: 21 June 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application to prune three neighbouring trees is granted, with modifications to the proposed pruning as outlined. (2) Within 30 days of the date of these orders, the respondent is to obtain, and supply to the applicants copies of, three quotes for the works specified below. The cost for works to each of the three trees is to be itemised separately in the quotes. (3) 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 works: (a) Tree 1: remove the eastern stem to its collar where it joins the main body of the tree; prune for weight-reduction and building clearance other limbs to the east near the applicants' dwelling as per the Peacock report (Exhibit 1); remove deadwood >25 mm in diameter. (b) Tree 2: remove the low northern branch back to its branch collar at the stem; prune to achieve 1.5 metres of clearance to the applicants' roof (direct clearance, not clearance within 1.5 m of the vertical plane above the outer wall) cutting back to the first suitable branch collar or lateral branch; remove deadwood >25 mm in diameter. (c) Tree 3: prune to achieve 1.5 metres of clearance to the applicants' roof (direct clearance, not clearance within 1.5 m of the vertical plane above the outer wall) cutting back to the first suitable branch collar or lateral branch; remove deadwood >25 mm diameter. (4) The respondent is to give the applicants 7 days' notice of the works ordered above. (5) During reasonable hours of the day the applicants are to allow any access required to their property for the works ordered above. (6) Within 14 days of receiving a copy of a receipted paid invoice for the works ordered above, the applicants are to pay the respondent 50% of the cheapest amount quoted in order 2 for pruning Tree 1. (7) If the applicants do not receive a receipted invoice for the works within 90 days of the date of these orders, order 6 lapses. (8) During July of each year, beginning 2020, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune Tree 3 to achieve 1.5 metres of clearance to the applicants' roof (direct clearance, not clearance within 1.5 m of the vertical plane above the outer wall) cutting back to the first suitable branch collar or lateral branch; remove deadwood >25 mm diameter. (9) On reasonable notice, the applicants are to allow any access required to their property for the works ordered above during reasonable hours of the day. (10) Liberty to relist for the purpose of clarifying the orders. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – injury – damaged structure was not constructed according to approved plans – question as to whether this has materially affected the situation – previous owner of the applicants' property chose to erect the structure near the respondent's tree – the tree was there first – orders for pruning three trees – applicants to contribute to the costs of pruning one tree Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Atanasovski v Sutu [2017] NSWLEC 1510 Black v Johnson (No 2) [2007] NSWLEC 513 Reed v Inner West Council [2017] NSWLEC 1038 Mosman Municipal Council v Denning [2002] NSWLEC 227 Thompson v Bignall [2009] NSWLEC 1149 Category: Principal judgment Parties: Theodore Keith Tsoukatos (First Applicant) Jade Sarah Greenhalgh (Second Applicant) Stephen Cansdell Hirst (Respondent) Representation: Counsel: R O'Gorman-Hughes (Applicants) C Norton (Respondent)