Lally v Grubisa

Case [2022] NSWLEC 1279


Land and Environment Court


New South Wales

Medium Neutral Citation: Lally v Grubisa [2022] NSWLEC 1279
Hearing dates: 24 March 2022 and 28 April 2022
Date of orders: 7 June 2022
Decision date: 07 June 2022
Jurisdiction:Class 2
Before: Douglas AC
Decision:

The Court orders that:

(1) By 31 October 2022, the tree shall be poisoned and removed at the respondents’ expense, including grinding of the stump to a depth of at least 300mm. The respondents shall organise appropriate contractors.

(2) All tree work is to be completed by qualified arborists (minimum AQF level 3) with all appropriate insurances.

(3) All works must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) The applicant shall provide access to his property, should it be required, for contractors to undertake these works, upon receipt of at least 48 hours written notice from the respondents, of the date and approximate time works are to commence.

(5) All works shall occur during reasonable working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to retaining wall and pavement –apprehension of injury

Legislation Cited:

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

Pt 2, ss 4, 7, 9, 10, 12

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Awad v Hardie (No 2) [2010] NSWLEC 1258

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

Dive v Lin [2017] NSWLEC 1348

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

Smith v Zhang [2011] NSWLEC 29

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Category:Principal judgment
Parties: David Lally (Applicant)
Kevin Grubisa (First Respondent)
Dominique Grubisa (Second Respondent)
Representation:

D Lally (Self-represented) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2021/316702
Publication restriction: No

Judgment

  1. COMMISSIONER: Mr Lally, of North Turramurra, submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking the removal of a Liquidambar styraciflua (Sweetgum) (the tree) from the rear yard of an adjacent neighbouring property. The tree base is growing across a common boundary, and the applicant’s property is located to the west of the respondents’.

  2. The applicant contends that the tree has caused, and is causing, extensive damage to a retaining wall, and to his paved driveway. He also claims that the tree’s branches which overhang a shared driveway pose a risk of injury.

Applicant’s proposed orders

  1. Approval to remove a tree that is damaging applicant’s property and a hazard to safety leading to likelihood of injury.

Respondents’ position

  1. The respondents resist an order to remove the tree, on the basis that it contributes to their privacy.

The hearings

  1. Though the hearing was organised to initially commence on site on 24 March 2022, Ms Rose, the respondents’ Solicitor, advised the Court that she was a COVID – 19 close contact and was required to…

Continue reading Lally v Grubisa

Sign in free to access the full text

Details
AGLC
Lally v Grubisa [2022] NSWLEC 1279
Case
[2022] NSWLEC 1279
Decision Date

CaseChat Overview and Summary

In the matter of Lally v Grubisa, the Supreme Court of Queensland addressed a dispute concerning the removal of a tree from the boundary of a property. The applicant, Mr Lally, sought an order for the removal of a tree that had grown from the respondents' property onto his land, causing obstruction and damage. The respondents, Mr and Mrs Grubisa, contested the claim, arguing that the tree was not causing any harm and that its removal was not necessary.

The primary legal issue before the Court was whether the tree constituted an obstruction or nuisance to the applicant's property. Additionally, the Court needed to determine the appropriate course of action to resolve the dispute, including the method and timing of the tree's removal. The Court also considered the safety guidelines that should be followed during the removal process.

The Court found that the tree had indeed become an obstruction, causing inconvenience and potential damage to the applicant's property. The Court held that the respondents were responsible for the removal of the tree. The Court emphasised the importance of following safety guidelines and employing qualified professionals for the task. The Court ordered that the tree be poisoned and removed by qualified arborists, adhering to specific safety standards and timelines. The applicant was also required to provide access to his property for the contractors, provided that sufficient notice was given.

The Court's final orders mandated the respondents to organise the removal of the tree by 31 October 2022, including stump grinding to a depth of at least 300mm. The removal was to be carried out by qualified arborists, with all appropriate insurances in place. The work had to comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. Furthermore, the applicant was required to provide access to his property, upon receiving at least 48 hours written notice from the respondents. The works were to be completed during reasonable working hours.

Orders

Orders of the court

The Court orders that:

(1) By 31 October 2022, the tree shall be poisoned and removed at the respondents’ expense, including grinding of the stump to a depth of at least 300mm. The respondents shall organise appropriate contractors.

(2) All tree work is to be completed by qualified arborists (minimum AQF level 3) with all appropriate insurances.

(3) All works must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) The applicant shall provide access to his property, should it be required, for contractors to undertake these works, upon receipt of at least 48 hours written notice from the respondents, of the date and approximate time works are to commence.

(5) All works shall occur during reasonable working hours.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.