Smith v Waddingham [2020] NSWLEC 1089

Land and Environment Court New South Wales

Medium Neutral Citation: Smith v Waddingham [2020] NSWLEC 1089 Hearing dates: 16 December 2019 Date of orders: 03 March 2020 Decision date: 03 March 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist who also holds an AQF level 5 arboriculture qualification, and all appropriate insurances, to conduct an aerial inspection of T1, which includes both the area of apparent swelling about 14 metres up the main trunk, immediately below the co-dominant junction, and the canopy zone overhanging the nature strip. (2) In conjunction with this inspection, this arborist shall prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, in the area of the canopy of T1 overhanging the adjacent nature strip, and within two metres of the parties' common property boundary. No live foliage outside these specifications shall be removed. (3) Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist, with all appropriate insurances, to prune T2, so as to remove the large live branch stub protruding from one of the trunks towards the applicant's property, back to the branch collar, plus prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, which are located within two metres of the parties' common property boundary. No live foliage outside these specifications shall be removed. (4) The respondent shall engage an AQF level 5 arborist, with all appropriate insurances, ideally the person who undertook Order (1), two years, four years and six years after the implementation of Order (1) to assess the condition of both the trees' canopies, and the trees' stability in the ground, and thus clarify the cumulative impact of the construction damage. After each inspection, this arborist shall provide a brief condition report including recommendations for any required works, to both parties. (5) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and AS4373: 2007 (Pruning of Amenity Trees). (6) Each party may get up to two quotes for each of these works, from contractors who meet the requirements specified in Orders (1) – (4). Should the parties not agree on a choice of contractor, the cheapest quote should be chosen. The respondent shall provide the applicant with a copy of the paid invoice upon completion of each of these works, and the applicant shall reimburse the respondent 65% of the total of each paid invoice within 30 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the respondent proceeds with a contractor who has not provided the cheapest quote for the ordered works, the applicant shall be required to reimburse the respondent for 65% of the cheapest quote within 30 days of receipt of the invoice. (7) Access to the applicant's land, should it be needed for these works, is subject to 48 hours written notice being provided to the applicants by email, and is to be gained during reasonable working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): dropping branches; roof damage; apprehension of injury Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005 Cases Cited: Ashworth v Joyce [2007] NSWLEC 357 Black v Johnson (No 2) [2007] NSWLEC 513 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS4373: 2007 (Pruning of Amenity Trees) Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Category: Principal judgment Parties: Geoffrey John Smith (Applicant) Trissia Waddingham (Respondent) Representation: G Smith (Litigant in person) (Applicant) N Cox (Agent) (Respondent) File Number(s): 2019/263339 Publication restriction: No