Thomas v Al-Mouzafar

[2019] NSWLEC 1104

Land and Environment Court

New South Wales

Medium Neutral Citation:	Thomas v Al-Mouzafar [2019] NSWLEC 1104
Hearing dates:	14 March 2019
Date of orders:	14 March 2019
Decision date:	14 March 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   Within 45 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the nine cypress trees in his back garden to no more than one metre above ground level. The works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry. (2)   The works are to be done from within the respondent’s property, but the applicant is to allow access to her property on reasonable notice, during reasonable hours of the day, for the purpose of cleaning up debris. (3)   Within 60 days of the date of these orders the respondent is to plant three trees that are native to NSW and that can grow to at least 10 metres in height. The trees are to be planted at least one metre from any boundary.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – dead trees – fire – orders for removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Freeman v Dillon [2012] NSWLEC 1057 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Linda Thomas (Applicant) Younese Al-Mouzafar (Respondent)
Representation:	Counsel: M Mando (Respondent)   Other: L Thomas, litigant in person (Applicant)
File Number(s):	2018/380783
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. Linda Thomas (‘the applicant’) made this application to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for a row of nine neighbouring trees to be removed. The trees are alongside her property and according to Ms Thomas they are likely to fall and cause damage or injury.

The trees

2. No arboricultural reports have been submitted. Bringing my own arboricultural expertise and experience, I observed the trees during the onsite hearing. The nine Cupressus × leylandii (Leyland Cypress) trees (‘the trees’) grow in a row in the back garden of Mr Al-Mouzafar (‘the respondent’), less than a metre from the common boundary fence shared with Ms Thomas. At the western end of the row, the tree nearest the dwelling (T1) is almost dead. The next tree along the row (T2) is dead. Half of T3 is dead. The remaining trees T4–T9 are dead. The trees are approximately 13–15 metres tall.

3. The stem of T1 is on an angle – it leans into T2. The other eight trees are upright.

4. Within the fall zone of the trees Ms Thomas has the outdoor area near her pool, sheds containing bikes and so on, and a pet rabbit.

The applicant’s submissions

5. Ms Thomas submitted that…