Gudelj v Szabo

[2021] NSWLEC 1127

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gudelj v Szabo [2021] NSWLEC 1127

Hearing dates:

9 March 2021

Date of orders:

9 March 2021

Decision date:

09 March 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application regarding Trees 1 and 2 is granted; the application regarding Trees 3-5 is refused.

(2) Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist or horticulturist (minimum AQF level 3), with all appropriate insurances, to remove Trees 1 and 2 to within 200 mm of ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondent is to give the applicant at least 2 days’ notice of the works.

(4) The exhibits are returned, except for Exhibits A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – damage to tiled verandah – two of five trees have caused or are likely to cause damage – orders to remove two of five trees

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:

Black v Johnson (No 2) [2007] NSWLEC 513

Texts Cited:

Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)

Category:

Principal judgment

Parties:

Stjepan Gudelj (Applicant)
Alexander Szabo (First Respondent)
Valentina Szabo (Second Respondent)

Representation:

S Gudelj (Litigant in Person) (Applicant)
J Lindgren (Solicitor) (Respondents)

Solicitors:
Jenkins Legal Services (Respondents)

File Number(s):

2020/312622

Publication restriction:

No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

1. In a quiet street in Metford Stjepan Gudelj (‘the applicant’) has repaired tiling on the front verandah of his dwelling. The tiled area extends to the common boundary shared with Alexander Szabo and Valentina Szabo (‘the respondents’). On the Szabos’ land, close to the boundary fence, is a row of five Italian Cypress trees (Cupressus sempervirens) (‘the trees’). Mr Gudelj has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for removal of the five trees, on the basis that they caused the damage to his verandah, and are likely to cause further damage if they remain. He does not seek compensation for repairs he has completed. The Szabos dispute that their trees have caused the damage, and do not wish to remove the trees.

2. At this morning’s onsite hearing, I observed the trees and both properties. Mr Gudelj was self-represented, assisted by a friend, while Mr Lindgren represented the Szabos.

Framework for this decision

3. The relevant jurisdictional tests of the Trees Act are set out at s 10. Before making orders for any tree under Pt 2 of the Trees Act, the Court must be satisfied that:

• The applicant has made reasonable effort…