Franco v Mazzetti

[2022] NSWLEC 1090

Land and Environment Court

New South Wales

Medium Neutral Citation:

Franco v Mazzetti [2022] NSWLEC 1090

Hearing dates:

11 November 2021

Date of orders:

24 February 2022

Decision date:

24 February 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court Orders that:

1) The application is granted.

2) Within 45 days, and at her expense, the Respondent shall remove the tree to at least 300mm below existing ground level, ensuring that all roots emerging from the stump of the tree, to this depth, are separated from the stump.

3) The structural root growing towards and under the common boundary wall, identified in the Laws’ report as being about 130mm diameter where it emerges into the Applicant’s property, shall be removed to a point as close to the base of the wall as is practical, on the Respondent’s side of the wall.

4) All works shall be completed by an AQF level 3 arborist, with all appropriate insurances.

5) All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.

6) All works are to be completed during normal work hours. Should access be required into the Applicant’s property to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to retaining wall; excavation undertaken to expose roots; are there viable alternatives to tree removal; do benefits from tree exceed the imperative to remove it

Legislation Cited:

Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006

ss 7, 9, 10, 12, Pt 2

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Stevens v Russell [2016] NSWLEC 1233

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, April 2021

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

Standards Australia, Protection of trees on development sites, 2009

Category:

Principal judgment

Parties:

Joe Franco (Applicant)
Ozlem Mazzetti (Respondent)

Representation:

J Franco (Litigant in person) (Applicant)
O Mazzetti (Litigant in person) (Respondent)

File Number(s):

2021/236725

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Mr Franco (the Applicant) and Ms Mazzetti (the Respondent) share a side boundary between their properties in Leichhardt, in Sydney’s inner west. The Respondent’s property is one of four under a Strata title, and a 2.3m tall reinforced block wall separates her property from the Applicant’s.

2. Four Gleditsia triacanthos (Honey Locust trees) were planted at various distances from the common boundary in the Strata property in 1992. In August 2019, Mr Franco received a report from Glenyss Laws, an arborist with extensive qualifications and experience, which displayed photographs of tree roots penetrating under or through gaps in the wall’s foundations into the Applicant’s property. This report was included in Mr Franco’s Tree Dispute and Claim details (Form H) as part of his application to the Court, and Ms…