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
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
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)
Solicitors:
C Rose (Solicitor) (Respondent)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2021/316702 Publication restriction: No
Judgment
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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’.
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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
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Approval to remove a tree that is damaging applicant’s property and a hazard to safety leading to likelihood of injury.
Respondents’ position
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The respondents resist an order to remove the tree, on the basis that it contributes to their privacy.
The hearings
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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…
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- AGLC
- Lally v Grubisa [2022] NSWLEC 1279
- Case
- [2022] NSWLEC 1279
- Decision Date
CaseChat Overview and Summary
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
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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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