Mordaunt v Reynolds [2023] NSWLEC 1244

Mordaunt v Reynolds [2023] NSWLEC 1244

The applicant satisfied the notice and reasonable-effort requirements, and the tree had caused minor roof damage and cracking to the boundary wall, engaging s 10(2)(a). Although further property damage in the near future was not established, the tree's root damage, excavation within the Structural Root Zone, Armillaria root rot, lean and canopy bias made catastrophic failure by windthrow probable and likely to cause injury to any person, engaging s 10(2)(b). Personal safety outweighed the tree's amenity and biodiversity value, and because the respondents' development works caused or materially contributed to the risk, the tree was ordered to be removed at the respondents' expense within...

Jurisdiction
Australia
Judgment Date
01 February 2023
Procedural Posture
Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Final Orders
Outcome
Orders made for removal of the Eucalyptus mollucana at the respondents' expense; respondents' proposed alternative orders not granted.
Legal Topics
['damage to Property From Tree Roots and Fallen Branches' 'likelihood of Injury From Tree Failure' 'tree Removal Orders' 'jurisdictional Requirements Under the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'land and Environment'] ['damage to Property From Tree Roots and Fallen Branches' 'likelihood of Injury From Tree Failure' 'tree Removal Orders' 'jurisdictional Requirements Under the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement and gave notice as required by ss 8 and 10(1) of the Trees (Disputes between Neighbours) Act 2006.' "Whether the Eucalyptus mollucana had caused, was causing, or was likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006." 'Whether the tree was likely to cause injury to any person under s 10(2)(b) of the Trees (Disputes between Neighbours) Act 2006.' 'What orders, if any, should be made after considering the matters in s 12 of the Trees (Disputes between Neighbours) Act 2006.' "Whether the respondents' alternative orders for cost sharing, delay, or restrictions on contact should be made."]

Ratio Decidendi

The applicant satisfied the notice and reasonable-effort requirements, and the tree had caused minor roof damage and cracking to the boundary wall, engaging s 10(2)(a). Although further property damage in the near future was not established, the tree's root damage, excavation within the Structural Root Zone, Armillaria root rot, lean and canopy bias made catastrophic failure by windthrow probable and likely to cause injury to any person, engaging s 10(2)(b). Personal safety outweighed the tree's amenity and biodiversity value, and because the respondents' development works caused or materially contributed to the risk, the tree was ordered to be removed at the respondents' expense within...

Court Disposition

Orders made for removal of the Eucalyptus mollucana at the respondents' expense; respondents' proposed alternative orders not granted.

Orders

  • ['Within 120 days of the date of these orders, the respondents, at their expense, shall remove the Eucalyptus mollucana at the rear of their property to near ground level. The stump shall not be poisoned but may be stump ground.' 'The tree removal works shall be completed by AQF level 3 qualified arborists who hold...