SGCH – St George Community Housing v Moffitt [2019] NSWLEC 1621

Land and Environment Court New South Wales

Medium Neutral Citation: SGCH – St George Community Housing v Moffitt [2019] NSWLEC 1621 Hearing dates: 1 November 2019 Date of orders: 03 December 2019 Decision date: 03 December 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [35] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – risk of injury – whether the applicant's actions contributed to risk of damage or injury – the tree was there first – who should pay for works – orders for pruning Legislation Cited: Native Vegetation Act 2003 (NSW) Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 Grant v Zhao [2019] NSWLEC 1387 Green v The Owners – Strata Plan No 16846 [2019] NSWLEC 1500 Texts Cited: AS4373:2007 Pruning of amenity trees 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work Category: Principal judgment Parties: SGCH – St George Community Housing (Applicant) Dannielle Moffitt (First Respondent) Jeff Moffitt (Second Respondent) Representation: Counsel A Landro (Solicitor) (Applicant) D Moffitt (Litigant in person) (First Respondent) J Moffitt (Litigant in person) (Second Respondent)

Solicitors: Colin Biggers & Paisley Lawyers (Applicant) File Number(s): 2019/150834 Publication restriction: No

Judgment

The application 1. SGCH – St George Community Housing ('the applicant') has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders relating to a tree overhanging a property they manage in Loftus. After their original application included no specific proposed orders, they filed a Notice of Motion to amend the application to include the following orders: * Orders for annual aerial inspection of the tree and pruning to remove deadwood and hazardous branches * Annual inspection of the tree for termites * Annual report of the inspection to be provided to the applicant * All of the above at the respondents' cost. 1. Jeff and Dannielle Moffitt ('the respondents') own the adjoining property on which the tree grows. They felt aggrieved by the process prior to the hearing – they did not receive notice of a telephone hearing where the application was amended. Nevertheless, their case has not been harmed and they have had sufficient time to respond to proposed orders and any evidence. They propose alternative orders similar to the applicant's orders above for annual inspection and maintenance of their tree, but at the applicant's cost.