Callaghan v Beverley [2020] NSWLEC 1117

Land and Environment Court New South Wales

Medium Neutral Citation: Callaghan v Beverley [2020] NSWLEC 1117 Hearing dates: 30 January 2020 Date of orders: 30 January 2020 Decision date: 30 January 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: The Orders of the Court are: (1) Within 60 days of these orders, the respondents shall contract an arborist, with all appropriate insurances, to reduction prune one branch of the Fig, which extends over the applicants' roof in a south – westerly direction, back to an appropriate junction within the canopy, such that the pruning complies with AS4573:2007 (Pruning of Amenity Trees). (2) Council shall develop a level 2 inspection strategy (based on ISA Tree Risk Assessment Qualification format) and a pruning strategy for the Fig tree (particularly in regard to branches overhanging the adjacent nature strip), and implement it for a period of five year from the date of these orders. This strategy shall entail inspections completed annually, plus after major storms, and they shall be undertaken at Council's expense. Any tree pruning recommended from these inspections shall be subject to standard Council application requirements, and fees, and any such works are to be completed at the applicants' and or respondents' expense. (3) All pruning shall comply with AS4573:2007 (Pruning of Amenity trees). (4) All pruning and inspections shall be completed by arborists with a minimum Arboriculture qualification of AQF level 3. (5) All tree works shall comply with the Safe Work Australia 'Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (6) The cost burden for the pruning in Order 1 shall be shared equally between the parties. Upon completion of this work, the respondent shall supply the applicant with a copy of the paid invoice, and the applicant shall reimburse the respondent for 50% of this cost, within 21 days. (7) The applicant shall provide access for completion of this pruning upon receipt of at least 48 hours written notice of the date and approximate starting time of the works. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from falling branches – apprehension of injury Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705; [2001] NSWCA 305 McPherson v Lake [2017] NSWLEC 1081 Owners Corporation Strata Plan 56927 v Horner [2012] NSWLEC 1146 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS4573:2007 (Pruning of Amenity Trees) Kiama Development Control Plan 2012 Safe Work Australia 'Guide to Managing Risks of Tree Trimming and Removal Work', 2016 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Category: Principal judgment Parties: Bernard Callaghan (Applicant) Robyn Beverley (First Respondent) Kiama Municipal Council (Second Respondent) Representation: Counsel: B Callaghan (Litigant in Person) (Applicant) R Beverley (Litigant in Person) (First Respondent) J Ede (Solicitor) (Second Respondent)