Maurici v Kaldor (No 2)

[2024] NSWLEC 1310

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maurici v Kaldor (No 2) [2024] NSWLEC 1310

Hearing dates:

21-22 February 2024 and submissions 29 May 2024

Date of orders:

11 June 2024

Decision date:

11 June 2024

Jurisdiction:

Class 2

Before:

Horton C

Decision:

See orders at [5]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –hedge – whether Trees Act applies - whether severely obstructs sunlight – whether severely obstructs views - orders

Legislation Cited:

Trees (Dispute Between Neighbours) Act 2006

Cases Cited:

Maurici v Kaldor [2024] NSWLEC 1267

Texts Cited:

AS4373-2007 Pruning of amenity trees

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

Category:

Principal judgment

Parties:

Anthony Phillip Maurici (Applicant)
Andrew Gabriel Kaldor (First Respondent)
Renata Kuzena Kaldor (Second Respondent)
Transport for NSW (Third Respondent)

Representation:

Counsel:
J Potts SC and A Cameron (Applicant)
T Poisel (First and Second Respondent)
C Koikas (Third Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Minter Ellison (First and Second Respondent)
Hunt & Hunt (Third Respondent)

File Number(s):

2023/304389

Publication restriction:

Nil

Judgment

1. COMMISSIONER: On 22 May 2024, the Court delivered judgment with preliminary findings in the matter of Maurici v Kaldor [2024] NSWLEC 1267 (Maurici v Kaldor No 1). The Court directed the parties to provide short written submissions on the apportioning of responsibility for payment for the cost of the works in respect of pruning and other maintenance; removal and reinstatement of the existing paling fence in the vicinity of Trees T1-T5, and any other relevant aspect arising from the Court’s findings in that decision.

2. On 29 May 2024, the parties advised the Court that the First and Second Respondent’s will engage a suitability qualified arborist and fencing contractor with appropriate insurances to carry out any pruning, fencing and maintenance works the subject of the Court’s orders, all of which will be undertaken at the First and Second Respondent’s cost. The parties also agree to orders for reasonable access to complete any works.

3. As the parties have now complied with the Court’s directions, the Court now makes orders in accordance with s 9 of the Trees (Dispute Between Neighbours) Act 2006 (Trees Act) in respect of those trees found to cause, or be to likely cause, damage or injury; and in accordance with s 14D of the Trees Act in respect of those trees found to severely obstruct sunlight or views.

4. As my orders make reference to certain window openings in the dwelling under construction at No 66 The Point Road, Woolwich, it is helpful to once again re-produce below the as-built western elevation included at [260] of Maurici v Kaldor No 1.

Orders

5. The Court orders that the Application is upheld to the extent of the following orders:

1. The First and Second Respondents are to engage and pay for a suitably qualified and experienced arborist, horticulturalist or landscaping contractor, all of which must be minimum AQF level 3, with appropriate insurances, to carry out the following works within 60 days of the date of these orders, and thereafter every six months in June and December of each year.

2. Pruning is to be undertaken by the First and Second Respondents in the following terms:

1. Trees T2-T5 are to be pruned in height to RL 15.95, being the approximate level of the balustrade surrounding the Juliet balcony on No 66 The Point Road, from which overlooking to the First and Second Respondents’ ground floor bedroom is obtained, and pruned so that the overhang to No 66 The Point Road, Woolwich is substantially removed without placing the health of the trees at risk.

2. Tree T6 is to be pruned to a height of no greater than 2.4m from the natural ground level at No 64 The Point Road, and remove any portion of the bamboo hedge overhanging No 66 The Point Road, Woolwich.

3. Trees T7-T9 are to be pruned in height to 3.35m above the level of the pool deck to No 64 The Point Road, Woolwich, being in the order of 2.4m above the finished floor level of the room served by Window W4 on No 66 The Point Road, Woolwich, which is set back 2m from the western boundary, allowing a solar access plane in the order of 60 degrees to the base of the window. Furthermore, any portion of the trees overhanging 66 The Point Road, Woolwich is to be likewise pruned.

4. Tree T10 is to be pruned to a height of 2.5m above the level of the pool deck to No 64 The Point Road, Woolwich, which is in the order of 1.58m above the finished floor level of the room served by Window W5, and in the order of 2.15m above the terrace adjoining the boundary. As for Window W4, W5 is likewise set back 2m from the western boundary, permitting a solar access plane of around 45 degrees to the base of the window.

5. Trees T11-T13 are to be pruned to a height of 2.17m above the level of the pool deck to No 64 The Point Road, Woolwich. Such a height is 1.25m above the finished floor level of the room served by Window W5, and 1.82m above the terrace adjoining the boundary. Such a height should permit a view, when standing, of the Lane Cove River from this location, albeit over a side boundary but, because of the location of Window W5 and T11-T13, without affording a view to the pool deck itself. Any portion of the trees overhanging 66 The Point Road, Woolwich is to be likewise pruned.

6. Tree T14 is to be pruned to a height of 2.1m above the top of the planterbox in which the bamboo is planted, which is in the order of 2m abovpe the lower ground floor in this area of No 66 The Point Road, Woolwich and any portion of the trees overhanging 66 The Point Road, Woolwich is to be likewise pruned.

7. Trees T15-T17 are to be pruned to a height of 2.1m above the top of the planterbox in which the bamboo is planted, which is in the order of 2m above the lower ground floor in this area of No 66 The Point Road, Woolwich and any portion of the trees overhanging 66 The Point Road, Woolwich is to be likewise pruned.

8. Trees T18-T22 are to be pruned to a height of 4.7m above the top of the planterbox in which the trees are planted, which is in the order of 1m above the finished floor level of the room served by window W7 to permit a view, when standing, of the Lane Cove River through this window, albeit over a side boundary. Any portion of the trees overhanging 66 The Point Road, Woolwich is to be likewise pruned.

3. Within 90 days of the date of these orders, the First and Second Respondents are to engage, and arrange payment for, a suitably qualified fencing contractor with appropriate insurances to replace that part of the boundary paling fence damaged by, or likely to be damaged by Trees T2-T5, extending from the northern corner of the existing garage at No 64 The Point Road, for a distance of 12m north of the garage, to the nearest upright fence post, with the same materials and to the same height as existing along the common boundary.

4. The Respondents are to give the Applicant seven days written notice of their intention to commence of the works in Orders (1) and (2). All works are to be done in accordance with the guidelines of the Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’, and with AS4373-2007 Pruning of amenity trees.

5. The Applicant is to allow any access reasonably required to complete and clean up the works ordered above, during reasonable hours of the day, provided that such access will not lead to damage to any property at 66 The Point Road, Woolwich.

6. All Exhibits are returned except for Exhibit A.

……………………

T Horton

Commissioner of the Court

Decision last updated: 12 June 2024