Cohen v Haydon [2022] NSWLEC 1564

Cohen v Haydon [2022] NSWLEC 1564

The applicant had made a reasonable effort to reach agreement with the respondent. The large, long-dead Eucalyptus showed structural deterioration, termite activity and a recent history of major branch failure, and was likely to cause damage to the applicant's property in the near future and posed a moderate risk of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
25 July 2022
Procedural Posture
Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Principal Judgment and Final Orders
Outcome
Application granted.
Legal Topics
['apprehension of Damage and Injury' 'tree Removal' 'reasonable Effort to Reach Agreement' 'risk of Property Damage' 'risk of Injury']
['land and Environment' 'trees Disputes Between Neighbours'] ['apprehension of Damage and Injury' 'tree Removal' 'reasonable Effort to Reach Agreement' 'risk of Property Damage' 'risk of Injury']

Source-derived case record

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Procedural Posture

Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Principal Judgment and Final Orders

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the owner of the land on which the tree is situated.' "Whether the tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property." 'Whether the tree is likely to cause injury to any person.' 'What orders should be made having regard to the matters in s 12 of the Trees (Disputes between Neighbours) Act 2006.']

Ratio Decidendi

The applicant had made a reasonable effort to reach agreement with the respondent. The large, long-dead Eucalyptus showed structural deterioration, termite activity and a recent history of major branch failure, and was likely to cause damage to the applicant's property in the near future and posed a moderate risk of injury to persons. The jurisdictional requirements in s 10 of the Trees (Disputes between Neighbours) Act 2006 were satisfied, and after considering s 12 matters, orders for relatively urgent removal at the respondent's expense were warranted.

Court Disposition

Application granted.

Orders

  • ['The application is granted.' 'Within 40 days of the date of these orders, the respondent, at his expense, shall employ arborists to remove the large dead Eucalyptus tree in the north-west corner of his rear yard, to a trunk height no higher than three (3) metres above ground level, measured from immediately...