Jones v Moser (No 2)

[2021] NSWLEC 1132

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jones v Moser (No 2) [2021] NSWLEC 1132
Hearing dates:	29 May 2020; 26 February 2021
Date of orders:	26 February 2021
Decision date:	26 February 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See final orders at [4]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – amendment to orders to facilitate completion
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW), s 9
Cases Cited:	Jones v Moser [2020] NSWLEC 1399
Texts Cited:	Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work
Category:	Principal judgment
Parties:	Christopher David Jones (First Applicant) Samantha Jane Jones (Second Applicant) Carl Ulrich Mathias Moser (First Respondent) Clare Marie Morrison (Second Respondent)
Representation:	C Jones (Litigant in person) (Applicants) C Moser (Litigant in person) (First Respondent) C Morrison (Litigant in person) (Second Respondent)
File Number(s):	2020/40586
Publication restriction:	No

Judgment

Background

1. In proceedings 40586 of 2020, I made orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) in Jones v Moser [2020] NSWLEC 1399. Apart from requiring removal of a tree, the orders required the parties to gain quotes, development consent and certification for replacement of a retaining wall. Due to the complexity of the process, as well as the potential difficulty to satisfy proposed timeframes due to COVID restrictions, the parties were given liberty to relist on two days’ notice.

2. During the process of carrying out the orders, the Applicants contacted the Court to explain that the certifier in order (5) required a copy of the nominated contractor’s insurance. The process of obtaining quotes and selecting a contractor was set out in order (6). The sequence of the orders did not allow for this.

3. I heard from the parties again on 26 February 2021. The Respondents and the Applicants agreed that the amendments made to orders (5) and (6) should allow the matter to be finalised. The nature and outcomes of the orders remains consistent, but the sequence at orders (5) and (6) has been amended. For clarity, I include the complete orders below. Orders (1)-(5) were completed as at 26 February 2021.

Orders

4. The Court orders that:

1. Within 14 days of the date of these orders, the Respondents and the Applicants are each to obtain two quotes from arborists with a minimum AQF Level 3 qualification and all appropriate insurances to remove to ground level the Respondents’ cypress tree located adjacent to their western boundary.

2. Within 14 days of the date of these orders the Respondents and Applicants are to exchange quotes and agree on the appropriate contractor or, if no agreement can be reached, select the cheapest quote.

3. Within 28 days of the date of these orders, the Respondents are to engage and pay for the arborist selected in Order (2) to remove to ground level the Respondents’ cypress tree located adjacent to their western boundary. These works must be carried out in accordance with the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work.

4. Within 14 days of receiving a copy of the receipted paid for the works in Order (3), the Applicants are to reimburse the Respondents 50% of the amount as quoted by the arborist selected in Order (2).

5. Within 28 days of the date of these orders the Applicants are to make an application to obtain development consent by lodging a development application for the demolition of the entire existing concrete blockwork retaining wall and construction of a new footing and retaining wall (in accordance with the drawing titled “Boundary Retaining Wall”, numbered SK02, dated 9/02/2018 and prepared by Northern Beaches Consulting Engineers Pty Ltd and the drawing titled “Proposed Retaining Wall - Site Plan & Section”, numbered DA01 A, dated 25/08/2019 and prepared by SB Design, annexed to the Tree Dispute Claim Details) on the common boundary between the Respondents’ property and the Applicants’ property.

6. By 29 March 2021 the Applicants and the Respondents are to:

1. Each obtain two itemised quotes from licensed and suitably experienced building contractors, with all appropriate insurances, for the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.5-metre high lapped and capped treated pine fence above, built on the surveyed boundary in accordance with the drawing titled “Boundary Retaining Wall”, numbered SK02, dated 9/02/2018 and prepared by Northern Beaches Consulting Engineers Pty Ltd and the drawing titled “Proposed Retaining Wall -Site Plan & Section” numbered DA01 A dated 25/08/2019 and prepared by SB Design, annexed to the Tree Dispute Claim Details. The wall and footing must be engineered to comply with all standards for a concrete block retaining wall and footing in this situation; and

2. Exchange quotes and agree on the appropriate contractor or, if no agreement can be reached, the cheapest quote must be selected. Should it be required, any additional work will be at the expense of the party who requires it.

3. Following (a) and (b) above, the Applicants are then to engage the nominated contractor and request a copy of the contractor’s relevant insurances. The Applicants are to provide the Respondents with a copy of the insurances.

7. Within 7 days of selecting a contractor, the Applicants are to engage a principal certifier and obtain a construction certificate for the works approved under the development consent. The Respondents are to provide and not withhold owners’ consent for any applications or forms required to obtain development consent and a construction certificate for the above works.

8. On reasonable notice the Applicants and the Respondents are to provide all reasonable access to their respective properties for the purpose of quoting for all tree removal and wall and fencing works ordered above.

9. The Applicants are to engage and pay for the selected contractor in Order (6) and are to pay for any costs ancillary to the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.5-metre high lapped and capped treated pine fence above.

10. The works in Order (6) above are to be completed within 16 weeks of the date of engagement of the nominated contractor.

11. The Applicants are to give the owners of the property immediately to their south 14 days’ notice of the works in Order (6).

12. Within 21 days of the receipt of an itemised costs account and receipts for the application(s) in Orders (5) and (7) above, the Respondents are to reimburse the Applicants 50% of all costs associated with obtaining development consent and a construction certificate.

13. Within 21 days of the receipt of an itemised costs account and a paid tax invoice for the completed works in accordance with Order (6) the Respondents are to reimburse the Applicants 50% of the cost as determined in accordance with Order (9), including 50% of all costs ancillary to the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.5-metre high lapped and capped treated pine fence above, including but not limited to a boundary survey and peg out (if required), relocation of in-ground services (if required), removal of contaminated fill or asbestos (if required), engineering inspections (if required), stump grinding/removal (if required), critical stage inspections and an occupation certificate (if required).

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 15 March 2021