Lobasso v Jin

[2023] NSWLEC 1543

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lobasso v Jin [2023] NSWLEC 1543

Hearing dates:

15 June 2023

Date of orders:

22 September 2023

Decision date:

22 September 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders are:

(1) See orders at [57]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to garden edging – apprehension of further damage and of injury – leaves and bracts falling onto veranda roof and gutters

Legislation Cited:

Dividing Fences Act 1991, s 7

Trees (Disputes Between Neighbours) Act 2006,

Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

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

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

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Standards Australia, AS4373-2007: Pruning of amenity trees, March 2007

Category:

Principal judgment

Parties:

Dianne Beverly Lobasso (Applicant)
Nansong Jin (First Respondent)
Kejia Li (Second Respondent)

Representation:

D Lobasso (Self-represented) (Applicant)
N Jin (Self-represented) (First Respondent)
K Li (Self-represented) (Second Respondent)

File Number(s):

2023/91028

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Dianne Beverly Lobasso who proposes that the Court orders the removal of trees located in an adjacent neighbouring property.

Background

2. Ms Lobasso (the applicant), and Mr Jin and Ms Li (the respondents), share a side boundary between their Carlingford properties, which extend from north-west at the street entrance to south-east at the rear. The applicant has occupied her property since 1997, and the respondents, since 2013.

3. Two trees growing in the respondents’ back yard in a narrow garden between an inground fibreglass swimming pool and a timber paling common boundary fence are the subject of the application. Tree 1 (T1) is a Cupressus macrocarpa (Monterey Cypress) and Tree 2 (T2) is a Bougainvillea cultivar (Bougainvillea), a woody vine which is classified as a tree for the purposes of the Trees Act.

4. The side wall of the applicant’s dwelling was parallel with the common boundary and about 1.6 metres (m) distant, while the thick base of the mature Bougainvillea was located about 4 m east of the south-east corner of the applicant’s raised back veranda. T1 was located about 2 m south-east of T2, and both trees were close to the boundary.

5. Photographs provided with the application showed the Bougainvillea growing into and throughout the canopy of T1, reaching a height of around 9 m and weighing heavily on branches over the applicant’s land.

6. Ms Lobasso submitted that Bougainvillea canes growing throughout the canopy of the Cypress tree caused damage to the boundary fence, and thickening roots of T1 uplifted and cracked concrete edging of a garden near the boundary. The applicant claimed that leaves and bracts (flowers) from T2 clogged roof gutters and caused secondary ceiling damage, and that the trees’ overhanging branches restricted moisture and sunlight which inhibited growth of adjacent shrubs and lawn. Ms Lobasso sought to restrain Bougainvillea canes from T1 growing into Cocos palms near her pool. T2 had extended to about 3 m from the palms, and though it was unlikely, in the absence of intervention, T2 had the capacity and vigour to envelop the palms in the medium term. Though the application did not include claims based on “injury to any person”, Ms Lobasso noted her dog had endured repeated paw injuries from Bougainvillea thorns, and said it was likely that people would be similarly injured.

7. Ms Lobasso approached Mr Jin and Ms Li and proposed removal of both trees due to damage and nuisance. The respondents resisted removal as they valued the privacy and environmental services the trees provided, but subsequently offered to consider tree removal if the applicant shared the cost. The applicant claimed the damage arose from the respondents’ inadequate maintenance and rejected this offer.

The onsite hearing

8. The hearing was conducted onsite on 15 June 2023. Both parties were self-represented, and Ms Lobasso was accompanied by her husband. As is customary, the trees were inspected initially in the respondents’ yard.

9. The respondents’ boundary garden was about 1.5 m wide. T2 was about 12 m tall and mature, with a flared trunk base of about 850 mm diameter that extended close to the boundary. Though T1 had been professionally pruned on 24 April 2023, a large quantity of severed canes had not been removed from the tree but remained intertwined amongst internal branches, and hanging pendant over the applicant’s garden.

10. To find the dis-attached canes left in the tree was unsurprising as Bougainvillea canes grow long rigid thorns and it is difficult to handle. It would, however, have taken many years of relatively unrestrained growth for T2 to have grown and established in the Cypress to the extent exhibited onsite and the applicant’s photographs showed that pendant growth encroaching over the boundary was much more extensive prior to the recent pruning. Ms Lobasso also claimed T1 was cracked and damaged as a result of the mass of T2 straining branches, but I found T1 to be structurally sound.

11. The applicant described the constant ‘rain of debris’ from T2 that clogged back veranda gutters and allegedly caused water penetration into the ceiling. Ms Lobasso acknowledged a significant reduction of overhanging foliage since the pruning of April 2023 but expressed a lack of confidence that the respondents will regularly repeat such maintenance. Upon inspecting the garden edging near the boundary, I was satisfied of the nexus between thickening primary roots from T1 and the uplifted, cracked concrete edging.

Jurisdictional requirements

12. With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

13. Ms Lobasso provided evidence that satisfied s 8 of the Trees Act, requiring notice of the application for orders to be given to owners of affected land, and to Hornsby Shire Council (Council). Section 9(1) of the Trees Act details the Court’s broad jurisdiction to make orders “as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.”

14. Section 10(1)(a) of the Trees Act requires the applicant to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated.

Did the applicant make a reasonable effort to reach agreement with the owner of the land on which the trees are situated?

15. Ms Lobasso claimed that she and her husband made multiple “friendly” personal requests for tree removal and said the respondents agreed in April 2022 to have the trees removed during the following winter. The applicant submitted that upon approaching the respondents again after no tree works were undertaken during winter 2022, Mr Jin and Ms Li said the tree removals were for the applicant’s benefit and thus wanted the applicant to pay half the cost of removal. The applicant rejected such cost sharing.

16. Mr Jin and Ms Li complained about the manner and lack of reasonableness of Ms Lobasso’s demands to remove the trees, which was initially based on leaves clogging gutters and the trees blocking sunlight. The respondents claimed they agreed to consider tree removal and organise a removal quote as a gesture of respect and “in the spirit of neighbourliness”, but that their subsequent proposal to the applicant for cost sharing resulted in rude, aggressive, and discriminatory behaviour towards them.

17. Negotiations between the parties have been difficult with conflict extending beyond the disputed trees, but this is regrettably common in many tree disputes. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) Preston CJ provides extensive guidance on the ‘reasonable effort’ required to satisfy the Trees Act. At [195] of Robson, his Honour notes that:

“The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process.”

18. At [191]-[194] of Robson, his Honour provides a framework for consideration of this requirement at s 10(1)(a) of the Trees Act.

“Reasonable effort to reach agreement

191…

192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33.

193 The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission’s recommendation of giving notice before taking court action.

194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.”

19. As a consequence, the requirement to make “a reasonable effort to reach agreement” does not prescribe that a person must negotiate in a particular manner, nor does it preclude the applicants from being intractable in their demands. Therefore, I am satisfied that s 10(1)(a) of the Trees Act is engaged.

20. The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be satisfied that the tree concerned:

(a) has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property, or

(b) is likely to cause injury to any person.

Section 10(2)(a): Damage caused by the trees, or likely in the near future

The applicant’s submission

21. In her Tree Dispute Claim Details (Damage to property or injury to a person) (Exhibit B), Ms Lobasso submitted that the combined impact of the Monterey Cypress tree intertwined with vigorous Bougainvillea caused damage to the boundary fence, and that roots of the trees had uplifted and cracked concrete edging of a garden near the boundary. The applicant claimed that leaves and flowers from T2 blocked up roof gutters and caused secondary ceiling damage, and that the trees’ overhanging branches blocked sunlight to her yard which inhibited growth of nearby shrubs and lawn by dominating moisture and light. Ms Lobasso sought to restrain Bougainvillea canes from growing into Cocos palms near her pool and said her dog had been injured by Bougainvillea thorns, and that people would probably be injured similarly.

The respondent’s submission

22. Mr Jin and Ms Li submitted a response dated 9 May 2023 (Exhibit 1). The respondents alleged that tree removal would significantly compromise their privacy in the back yard pool area because the applicant can overview the respondents pool in the absence of the trees. The respondents also noted enjoying watching birds and possums use the trees for habitat.

Findings

Damage to concrete garden edging

23. The applicant claimed that roots of the trees had damaged concrete edging in a garden bed under T1 and were likely to cause future damage. Under the Trees Act, alleged future damage is limited to “the near future” and a guidance decision published in Yang v Scerri [2007] NSWLEC 592, defined the near future as about 12 months from the date of the determination.

24. As the cracking was in close proximity to primary woody roots of T1, I am satisfied by this site evidence that T1 has caused the concrete edge damage and acknowledge that the uplift and cracking is likely to slowly worsen. Consequently, s 10(2)(a) of the Trees Act is engaged.

Damage to common boundary fence

25. Though the respondents claimed their trees had not damaged the timber boundary fence, photographs with the application showed Bougainvillea foliage pressing heavily against and over the fence, along with ties around some palings to secure the fence in place. Even a photograph in Exhibit 1, provided by the respondents to support a claim of no fence damage by their trees, showed a recently cut Bougainvillea stem that would have been growing into the fence.

26. The fence was old and displayed significant wood decay in posts and palings, and the primary cause of fence dilapidation was natural wear and tear over time. As the trees need only be ‘a’ cause of damage, however, s 10(2)(a) of the Trees Act is again engaged by the trees’ contribution to fence damage.

27. The Land and Environment Court has jurisdiction to hear and determine matters arising under the Dividing Fences Act1991 (The Dividing Fences Act) in proceedings to which this section applies if the application is made under s 7 of the Trees Act, and if the proceedings have been commenced but not determined, and the tree that is the subject of those proceedings has caused, is causing, or is likely in the near future to cause damage to a dividing fence.

28. As this situation applies here, the parties shall contribute equally to the replacement of a specified section of fence, under powers at s 7(1) of The Dividing Fences Act, “Contribution as between adjoining owners – generally”.

Dropping debris

29. The applicant claimed that leaves and flowers from T2 clogged roof gutters and caused secondary ceiling damage. In Robson at [171], with respect to annoyance or discomfort caused by trees, his Honour states:

“However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not “damage to property on the land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”

30. As many applications under Pt 2 of the Trees Act conflate leaves and other debris falling or blowing from trees as damage, the Court has published a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], says:

“It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.””

31. This Tree Dispute Principle established in Barker has been consistently applied by the Court and it applies on site currently with respect to the Monterey Cypress and Bougainvillea, notwithstanding that I acknowledge that the level of debris prior to the recent pruning, described by the applicant and shown in attached photographs, may have exceeded the maintenance expectations under Barker.

32. The expectation of regular grounds maintenance established in Barker does, however, accommodate sufficiently regular clearing of roof gutters to minimise the likelihood of water entry and secondary damage to ceilings alleged by the applicant. Installation of gutter guard has been considered within reasonable maintenance in past judgments under the Trees Act. Consequently, Ms Lobasso’s claim regarding excessive debris drop and water damaged ceilings is refused.

33. Three consecutive La Nina cycles resulting in markedly above average rainfall from 2020 – 2022 inclusive also probably contributed to very strong Bougainvillea growth, which is likely to retreat now conditions have returned to average or drier. The relatively slight slope of the applicant’s roof may have also contributed to water entry.

34. There is no remedy under the Trees Act for sunlight obstruction by individual amenity trees (as opposed to hedges), nor to drying of soil that does not cause other damage. In Robson, at [166], his Honour said; “…damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006 …”.

35. From March to September, sunshine would be obstructed by the trees for much of the afternoon, and both parties’ dwellings would obstruct the sun late in the day. During the warmer months, when the sun’s arc is more vertical, the impact of sunlight obstruction would be greatly reduced. As it is a reasonable and usual practice for urban residents to grow trees for privacy, considering Ms Lobasso’s back yard is south-west of the respondents’ yard, winter sunlight in the applicant’s garden is inherently difficult to protect.

36. Where lawn had died, the soil looked fine textured and compacted, such that decompaction, wetting agent, and supplementary watering in spring and summer would probably assist lawn regrowth. Finally, I was not satisfied that near future damage to the applicant’s Cocos Palms was likely, so this claim was refused.

Risk of injury

37. Though Ms Lobasso’s initial submissions regarding injury related to her dog, she speculated about injury to people, and various injury issues require consideration. Though encroachment of foliage or roots beyond the common boundary is not limited by the Trees Act unless the encroachment also satisfies s 10(2), the residual Bougainvillea overhanging the applicant’s yard amongst the branches of T1 presents a genuine risk of injury. The respondents allowed the Bougainvillea to grow and gain support throughout the Monterey Cypress for many years. While it had not yet split junctions or otherwise damaged the Monterey Cypress, had it remained in the tree, such damage was likely. T2 also restricted essential light from the Monterey Cypress foliage and provided opportunities for insects to damage the tree undetected.

37. The majority of the Bougainvillea canes were severed but were not removed from the Cypress. As stems decay and deteriorate, they will fall from the tree with large thorns still intact. Therefore, orders shall include removal of residual Bougainvillea stems overhanging the applicant’s yard from T1.

38. It is unlikely that the respondents encouraged the Bougainvillea to occupy and dominate the Monterey Cypress and cause injury risk for the applicant. More likely, the respondents were unaware of Bougainvillea’s capacity to rapidly occupy and envelop neighbouring trees, or the negative impact on T1, or the injury potential of its thorns. Most likely, the Bougainvillea ‘got away’, resulting in a difficult maintenance task at considerable cost.

39. T1 appears to be moderately healthy and stable in the ground. There are no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, which an arborist may interpret as indicative of stability issues. Attachments of live branches appear strong and stable. Thus, I have no concerns about T1 concerning risk of injury.

40. I do, however, have concerns about the proximity of T1 from Mr Jin and Ms Li’s pool. Though the respondents reported no conflict between their pool and tree roots, damage to a fibreglass pool is not unlikely in the longer term when one has large, vigorous trees in close proximity. Regular pool surface inspections are recommended.

41. As the cracked garden edging and fence damage engaged s 10(2)(a) of the Trees Act, if orders are to be made, the Court must consider relevant discretionary matters in s 12 of the Trees Act.

Discretionary considerations – s 12

43. Factors submitted by the respondents relevant to s 12 of the Trees Act are the privacy provided by the trees and the contribution of the trees to the local ecosystem and biodiversity (ss 12 (b3)) and 12(d)).

44. The trees are located in the respondents’ property within 500 mm and parallel with the shared timber paling boundary fence (s 12(a)).

45. Section 12 (b2) considers the impact any pruning would have on the trees. The respondents submitted that they regularly maintained the trees, and occasionally employed professionals to do so. The Bougainvillea will generally tolerate occasional heavy pruning, as was completed, with little negative impact. Should the Bougainvillea be retained, its height can be restricted without jeopardising the tree’s health and longevity, whilst still maintaining privacy from overviewing by the applicant. The height of T1 cannot, however, be much reduced without a marked health impact. Based on its maturity and characteristics of its species, T1 would be unlikely to reshoot new growth if pruned heavily (s 12(b2)).

46. Section 12(h)(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. ‘The tree was there first’ is relevant to T1. Upon contemplating the location of the garden bed with concrete edging about 900mm from T1, it should have been reasonably obvious to the applicant or her landscape gardener husband, that T1 was well established, and thus that its roots may impact an unreinforced concrete garden bed edging installed in close proximity to the tree.

47. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make (ss 12(h)(i)).

Conclusion and contemplation of orders

48. The unrestrained growth of Bougainvillea throughout the overhanging Monterey Cypress branches caused genuine risk of injury to the applicant and her family and is detrimental to the structure and functioning of T1. Orders will thus be made to mitigate the risk from falling dead and dying stems, and to prevent future growth of T2 into T1. Though the orders will read, “prune all dead and live Bougainvillea stems and foliage”, allowance must be made for some small components of debris to be missed by the contractors and thus continue to drop to a minor degree after completion of the works. A branch of T1 which extended furthest over the applicant’s land appeared to have been twisted by stems of T2. Orders for this branch removal should also reduce the time and cost of the Bougainvillea pruning.

49. A second Bougainvillea growing south-east of T1 was not included in the application. Nonetheless, to prevent damage to T1 and future risk to the applicant’s family, orders shall be made to restrain the Bougainvillea south-east of T1 from growing into T1.

50. Though orders to mitigate risk of injury shall relate only to the applicant’s land, I recommend the respondents also remove residual Bougainvillea stems from T1 overhanging their land. This will improve the health and appearance of T1, and most importantly, reduce the unpredictable shower of thorny debris that would otherwise probably fall on the respondents and their pool throughout the pending summer and autumn.

51. The garden edge damage is minor and inconspicuous, and the edging is likely to remain functional even if damage slowly worsened. Nonetheless, T1 caused the damage and to rectify the situation, the concrete edging will require replacement rather than repair. That said, the applicant expressed no plans to complete such works currently and the future cost of the works, after allowing for inflation, is unlikely to alter greatly.

52. In these circumstances, the most appropriate orders to compensate for damage by T1 is a set contribution to the cost of future garden edge replacement. The garden edge’s cost was unavailable as its installation was incorporated with other building works, but based on my experience with landscape gardening, $700.00 is a reasonable cost estimate. The compensation payable by the respondents shall, however, be discounted by 40% to $420.00 ($700 - $280), because T1 “was there first”, per the decision in Black.

53. The applicant’s claims regarding clogged gutters, damaged ceilings, and excessive maintenance from falling leaves and flowers were dismissed with consideration of the Tree Dispute Principle established in Barker. Future restraint of T2 should reduce these issues, however.

54. Though I am satisfied the respondents’ trees contributed to the fence damage, because the primary cause of damage was wood decay and deterioration of structural integrity over time, the cost of a replacement fence shall be equally apportioned between the parties, in accordance with s 7(1) of the Dividing Fences Act.

55. The respondents note important benefits from both trees, particularly privacy. As orders for pruning and maintenance of T2 and compensation for garden bed damage may remedy all the applicant’s claims to which the Trees Act applies, removal of the respondents’ benefits from the trees through tree removal would be a disproportionate and unreasonable response.

56. In most instances, respondents pay for pruning or removal, or other required works to compensate for or rectify damage or mitigate risk of injury. The compensation for garden edging damage was discounted in consideration of the decision in Black, and the cost of the replacement fence shall accord with s 7(1) of the Dividing Fences Act and be shared equally. Though inadequate maintenance by respondents does not of itself engage the Trees Act, I accept the applicant’s submission that the respondents’ failure to sufficiently restrain and maintain the Bougainvillea caused the risk of injury to the applicant. Therefore, the respondents shall pay for all pruning works arising from the orders.

Orders

57. The orders of the Court are:

1. Within 30 days of the date of these orders, the applicant shall provide bank account details to the respondents and the respondents shall transfer $420.00 to the applicant by Electronic Fund Transfer (EFT), as compensation for concrete garden edge damage.

2. Within 60 days of the date of these orders, the respondents, at their expense, shall:

1. prune the Bougainvillea (T2) to a maximum height of 3 metres above ground level and remove all foliage and stems from both T2 and from the Bougainvillea south-east of the Monterey Cypress (T1) within one metre of T1.

2. prune low branch on T1 that encroaches furthest over the applicant’s land and is about 75 mm at its branch collar. Remove debris.

3. prune all dead and live Bougainvillea stems and foliage from all Monterey Cypress branches overhanging the applicant’s land and remove debris from the applicant’s property.

3. All tree works shall be completed by AQF level 3 qualified arborists who hold all appropriate insurances and shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. The pruning of T1 shall comply with AS4373-2007: Pruning of amenity trees.

4. Within 60 days of the date of these orders, the applicant and respondents shall exchange one quotation each, for the replacement of the section of the common boundary fence from a post 520 millimetres south-east of a point where the fence intersects a line extended from the respondents’ rear building line to the south-east corner post. The quotation shall be procured from a professional fencing contractor with all appropriate insurance and shall specify a 1.8 metre tall, standard timber paling fence. The professional fencing contractor (with all appropriate insurance) who provided the cheapest quotation shall be selected to undertake the works.

5. Within 120 days of the date of these orders, the fence replacement shall be completed in accordance with Order 4. The applicant shall pay the contractor upon completion of the fence, and within 7 days of completion, the applicant shall provide a copy of a paid itemised invoice to the respondents.

6. The respondents shall pay the applicant 50% of the total of this paid itemised invoice by EFT within 7 days of receipt of paid itemised invoice from the applicant.

7. During April 2024 and November 2024, and during April and November of each subsequent year, the respondents, at their expense, shall:

1. prune the Bougainvillea (T2) to a maximum height of 3 metres above ground level and remove all foliage and stems from both T2 and from the Bougainvillea south-east of the Monterey Cypress (T1) within one metre of T1.

8. The applicant and the respondents shall each grant the other party and the other party’s insured contractors, all access required to assemble quotations and undertake the respective works, subject to at least 72 hours’ notice by email.

9. All works shall be completed during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 22 September 2023