Maurici v Kaldor (No 2)

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…