Baker v Freeman; Christie v Freeman [2021] NSWLEC 1091

Baker v Freeman; Christie v Freeman [2021] NSWLEC 1091

The Court was satisfied that both applicants made reasonable efforts to reach agreement and that the Sydney Blue Gum was likely in the near future to cause damage to the applicants' properties or injury to a person because long, overextended branches with end-weight, a hanging broken branch and deadwood were located above usable open spaces and a dwelling. Pruning would adequately address the risk of branch failure, further arboricultural assessment was required for the lower stem and root buttress, access should be allowed for the works, and the respondents as tree owners should pay for the works.

Jurisdiction
Australia
Judgment Date
24 February 2021
Procedural Posture
Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 (nsw) Seeking Pruning Orders / Final Determination After Hearing
Outcome
Both applications upheld.
Legal Topics
['overhanging Tree Branches' 'risk of Damage or Injury From Tree Failure' 'reasonable Effort to Reach Agreement With Tree Owner' 'pruning Orders' 'access to Neighbouring Properties for Tree Works' 'responsibility for Costs of Tree Works']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings' 'property Damage and Personal Injury Risk'] ['overhanging Tree Branches' 'risk of Damage or Injury From Tree Failure' 'reasonable Effort to Reach Agreement With Tree Owner' 'pruning Orders' 'access to Neighbouring Properties for Tree Works' 'responsibility for Costs of Tree Works']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 (nsw) Seeking Pruning Orders / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether each applicant made reasonable effort to reach agreement with the tree owners before orders were made under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW).' "Whether the Sydney Blue Gum had caused, was causing, or was likely in the near future to cause damage to the applicants' properties or was likely to cause injury to a person." 'Whether pruning and further arboricultural assessment should be ordered, and who should pay for the works.' 'Whether access should be allowed to properties for contractors to complete pruning works.']

Ratio Decidendi

The Court was satisfied that both applicants made reasonable efforts to reach agreement and that the Sydney Blue Gum was likely in the near future to cause damage to the applicants' properties or injury to a person because long, overextended branches with end-weight, a hanging broken branch and deadwood were located above usable open spaces and a dwelling. Pruning would adequately address the risk of branch failure, further arboricultural assessment was required for the lower stem and root buttress, access should be allowed for the works, and the respondents as tree owners should pay for the works.

Court Disposition

Both applications upheld.

Orders

  • ['In proceedings 2020/155573, the application is upheld.' 'In proceedings 2020/157553, the application is upheld.' 'Within 30 days of the orders, the respondents are to engage and pay for a suitably qualified and experienced arborist with minimum AQF Level 3 and appropriate insurances to prune the Sydney Blue Gum by...