The Owners - Strata Plan No 3358 v Pascale

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No 3358 v Pascale [2025] NSWLEC 1168

Hearing dates:

12 December 2024

Date of orders:

20 March 2025

Decision date:

20 March 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [51].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage and injury – neighbouring trees – damage to fence and retaining wall – risk of damage and injury – whether tree removal is required – who is responsible for the works

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

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

Texts Cited:

Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’ (March 2007)

City of Canada Bay Development Control Plan (March 2023)

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

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 3358 (Applicant)
Felice Pascale (First Respondent)
Angelina Pascale (Second Respondent)

Representation:

Counsel:
D Hunter (Agent) (Applicant)
A Barill (Agent) (First and Second Respondents)
M Pascale (Agent) (First and Second Respondents)

File Number(s):

2024/376649

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Three large camphor laurel trees grow on the Five Dock property where Felice and Angelina Pascale (the respondents) have lived since the days when horses grazed on surrounding properties. The trees are next to the common boundary shared with The Owners – Strata Plan No 3358 (the applicant). The trees cause the strata owners some nuisance: damage to the boundary fence, damage to a low retaining wall on their property, and debris falling into their gutters and elsewhere. Over many years the strata owners have occasionally asked the Pascales to prune the trees, sometimes with no result, but recently they asked the Pascales to remove the trees. The strata owners then applied to the Court seeking orders for removal of the trees and for the carrying out of repairs to their property where it has been damaged by the trees.

2. After the Pascales received a copy of the application to the Court, they applied to the City of Canada Bay Council (Council) for a tree permit. Council granted permission to prune the trees.

3. During the onsite hearing I took some time to observe the trees. I rely on my own arboricultural expertise and experience in making this decision. I also consider the material filed by the parties, including the application and claim, photos, videos, correspondence and invoices filed by the applicant, a report on the trees by arborist Lee Hancock, and a copy of Council’s determination on the consent application. No expert witnesses were required at the hearing. Mr Hunter represented the applicant as their agent; the Pascales’ daughter, Antonietta Barill, and son, Mario Pascale, represented them as agents.

Framework for this decision

4. The strata owners have applied to the Court pursuant to s 7 (Pt 2) of…