Stewart & anor v Ayoub & anor [2017] NSWLEC 1603

Stewart & anor v Ayoub & anor [2017] NSWLEC 1603

Orders are appropriate limited to pruning, risk assessment, and possible further application for removal if recommended by an arborist, along with mandatory repair of the damaged fence entirely at the respondents' cost owing to tree root damage. General issues from debris and shading do not individually warrant removal or further orders under the Act.

Parties
First Applicant: Renee Stewart; Second Applicant: Michelle Stewart; First Respondent: Sohair Zaki Ayoub; Second Respondent: Magdy Hanna Ayoub
Jurisdiction
Australia
Judgment Date
31 October 2017
Procedural Posture
Trees Dispute (class 2, Land and Environment Court) / Final Orders
Outcome
Application upheld
Legal Topics
Trees (disputes Between Neighbours), Damage to Fence, Risk of Injury or Damage, Tree Orders, Pruning and Inspection, Council Application Process, Cost Allocation for Repairs
Environmental Law Property Law Trees (disputes Between Neighbours) Damage to Fence Risk of Injury or Damage Tree Orders Pruning and Inspection Council Application Process +1 more

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Parties

Renee Stewart

First Applicant

Michelle Stewart

Second Applicant

Sohair Zaki Ayoub

First Respondent

Magdy Hanna Ayoub

Second Respondent

Procedural Posture

Trees Dispute (class 2, Land and Environment Court) / Final Orders

Legal Issues

  1. 1 Whether the respondents' tree is causing, or is likely to cause, damage to the applicants' property or injure persons on the property
  2. 2 Whether orders should be made requiring works to the tree and repair of boundary fence, and the extent of such orders

Ratio Decidendi

Orders are appropriate limited to pruning, risk assessment, and possible further application for removal if recommended by an arborist, along with mandatory repair of the damaged fence entirely at the respondents' cost owing to tree root damage. General issues from debris and shading do not individually warrant removal or further orders under the Act.

Court Disposition

Application upheld

Orders

  • Within 60 days, respondents to engage a suitably qualified arborist (minimum AQF 5) to prune the damaged limb and deadwood >60mm, inspect and photograph defects, and prepare a report.
  • Pruning works to comply with AS4373 and WorkCover NSW Code of Practice.