Sund v Bailey [2019] NSWLEC 1166

Sund v Bailey [2019] NSWLEC 1166

The dead tree on the respondents' land was found to have caused and likely to cause further damage and risk of injury after major root disturbance. Jurisdiction under Part 2 of the Act was enlivened, justifying an order for its removal. The section of the hedge (trees 6-11) was found to severely obstruct important water views from the applicants' dwelling; thus, the statutory requirements were satisfied under Part 2A, justifying pruning and maintenance orders. Discretionary factors under ss 12 and 14F did not outweigh the interests in removal/remedial action.

Jurisdiction
Australia
Judgment Date
01 April 2019
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Final Orders
Outcome
Orders made: tree removal and hedge pruning/maintenance as specified; applicant's further claims for compensation and for orders regarding other trees dismissed.
Legal Topics
['damage to Property by Trees' 'apprehension of Injury' 'tree Disputes Between Neighbours' 'obstruction of Views' 'pruning and Removal of Trees']
['environmental Law' 'property Law'] ['damage to Property by Trees' 'apprehension of Injury' 'tree Disputes Between Neighbours' 'obstruction of Views' 'pruning and Removal of Trees']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Final Orders

Legal Issues

  1. 1 ["Whether the tree on the respondent's land caused or is likely to cause damage or injury under the Trees (Disputes Between Neighbours) Act 2006" "Whether a hedge on the respondent's land severely obstructs the applicant's views as per the Act" 'Appropriateness of orders sought under Parts 2 and 2A of the Act including removal of tree and pruning of hedge']

Ratio Decidendi

The dead tree on the respondents' land was found to have caused and likely to cause further damage and risk of injury after major root disturbance. Jurisdiction under Part 2 of the Act was enlivened, justifying an order for its removal. The section of the hedge (trees 6-11) was found to severely obstruct important water views from the applicants' dwelling; thus, the statutory requirements were satisfied under Part 2A, justifying pruning and maintenance orders. Discretionary factors under ss 12 and 14F did not outweigh the interests in removal/remedial action.

Court Disposition

Orders made: tree removal and hedge pruning/maintenance as specified; applicant's further claims for compensation and for orders regarding other trees dismissed.

Orders

  • ['Respondents to remove the dead Eucalyptus racemosa to near ground level and grind its stump to at least 20cm below ground level within 60 days, at their expense.' 'Tree removal to comply with SafeWork Australia and NSW Code of Practice and be carried out by qualified arborists.' 'Respondents to maintain hedge...