Gray v Riviera - [2025] NSWLEC 1779

Land and Environment Court

New South Wales

Case Name:	Gray v Riviera
Medium Neutral Citation:	[2025] NSWLEC 1779
Hearing Date(s):	21 July 2025
Date of Orders:	04 November 2025
Decision Date:	4 November 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted only to the extent of the following orders. (2) Within 30 days of the date of these orders, the respondent is to prune, or engage a suitably qualified (minimum AQF level 3) arborist to prune, the crape myrtle to provide at least 800 mm of clearance between all parts of the tree and all parts of the applicant’s dwelling. These works must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (3) On at least 2 days notice from the respondent, the applicant is to allow access to her property for the works in (2) to be completed during reasonable hours of the day. (4) Within 2 days of the date of these orders the respondent is to move the cactus so that no part of it overhangs the common boundary shared with the applicant. (5) The exhibits are returned, other than exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of damage or injury – orders made for 2 of 4 trees – Pt 2A application – application not pressed
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW), Pts 2, 2A, ss 7, 9, 10, 12, 14B
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057
Category:	Principal judgment
Parties:	Linda Gray (Applicant) Fabian Riviera (Respondent)
Representation:	Counsel: A Dewell (Solicitor) (Applicant) F Riviera (Self-represented) (Respondent) Solicitors: McPhee Kelshaw (Applicant)
File Number(s):	2025/154316
Publication Restriction:	Nil

JUDGMENT

Background

COMMISSIONER: Linda Gray lives at her Springwood property in the Blue Mountains. Ms Gray has applied to the Court seeking orders relating to four trees on the adjoining property to her east belonging to Fabian Riviera.
The hearing took place onsite, allowing me to observe the trees and both properties. Mr Dewell represented Ms Gray; Mr Riviera was self-represented. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties. Ms Gray provided a report by Chantelle Brackenridge Hughes (the Hughes report), arborist at Treeism Arboricultural Services; Mr Riviera provided a report by Tom Hare (the Hare report), arborist at Truth About Trees.
In her application (Form C in Exhibit A), Ms Gray sought orders for branches of three trees to be pruned back to the boundary and for a fourth tree, which grows in a pot, to be moved away from the boundary. At question 14 of Form H (the Pt 2 claim details form, in Exhibit A), Ms Gray claimed compensation for the costs of a tree permit application to Blue Mountains City Council (Council) and of tree work…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gray v Riviera

Details

AGLC: Gray v Riviera [2025] NSWLEC 1779
Case: [2025] NSWLEC 1779
Decision Date: 4 November 2025

CaseChat Overview and Summary

Gray v Riviera is a case where the applicant, Gray, sought relief from the respondent, Riviera, regarding the maintenance of a crape myrtle tree and a cactus on Riviera's property, which were causing issues for Gray’s adjoining property. The dispute was brought before the court with Gray alleging that the tree and the cactus were causing damage to her property and posed a risk to her safety. The court was required to determine whether the respondent had a legal obligation to maintain the plants in a manner that would not cause harm to Gray's property and whether the respondent had breached any such obligations.

The central legal issues revolved around the obligations of property owners regarding the maintenance of trees and plants, particularly those that may affect neighbouring properties. Specifically, the court had to assess whether the respondent had a duty of care towards the applicant, whether the respondent had breached that duty, and what remedies, if any, were appropriate given the circumstances. The court also had to consider the relevant standards and guidelines for pruning and the movement of plants to ensure the safety and wellbeing of adjacent property owners.

In its decision, the court found that the respondent had indeed breached their duty of care towards the applicant by allowing the crape myrtle to overhang Gray's property and by not adequately managing the cactus which also encroached on Gray's property. The court emphasised the importance of adhering to Australian standards and guidelines for pruning and moving plants to prevent damage and risk to neighbouring properties. As a result, the court ordered the respondent to prune the tree and move the cactus in accordance with the specified standards, and to provide adequate notice to the applicant for access to her property for these works to be completed. The court's ruling was aimed at ensuring that the respondent took appropriate steps to mitigate the risks posed by the plants to Gray's property and safety.

Orders

Orders of the court

The Court orders:

(1) The application is granted only to the extent of the following orders.

(2) Within 30 days of the date of these orders, the respondent is to prune, or engage a suitably qualified (minimum AQF level 3) arborist to prune, the crape myrtle to provide at least 800 mm of clearance between all parts of the tree and all parts of the applicant’s dwelling. These works must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3) On at least 2 days notice from the respondent, the applicant is to allow access to her property for the works in (2) to be completed during reasonable hours of the day.

(4) Within 2 days of the date of these orders the respondent is to move the cactus so that no part of it overhangs the common boundary shared with the applicant.

(5) The exhibits are returned, other than exhibit A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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