Clarke v Goff [2021] NSWLEC 1672

Clarke v Goff [2021] NSWLEC 1672

The applicant had made reasonable effort to reach agreement, and the evidence established that the jacaranda tree had caused damage to external elements of the applicant's property, namely the boundary garden wall and pavers, although causation of internal dwelling damage was not established. Having considered the tree's amenity and urban forest benefits, Council's consent requirements, and the limited viable alternatives given the tree's poor long-term prognosis in its confined growing space, the Court was satisfied it could and should make orders for removal of the tree and replacement planting.

Jurisdiction
Australia
Judgment Date
01 November 2021
Procedural Posture
Class 2 Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment on Proposed Consent Orders
Outcome
Orders made for removal of the jacaranda tree and replacement planting; exhibits returned other than A and B.
Legal Topics
['neighbouring Tree Damage to Property' 'tree Removal' 'consent Orders' 'replacement Planting' 'council Refusal of Consent for Tree Removal']
['trees Disputes Between Neighbours' 'environmental Law' 'property Law'] ['neighbouring Tree Damage to Property' 'tree Removal' 'consent Orders' 'replacement Planting' 'council Refusal of Consent for Tree Removal']

Case Brief

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Procedural Posture

Class 2 Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment on Proposed Consent Orders

Legal Issues

  1. 1 ['Whether the applicant made reasonable effort to reach an agreed outcome with the respondents under s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the jacaranda tree had damaged the applicant's property, or was likely to do so in the near future, under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the proposed consent orders for tree removal were orders the Court could and would make within Pt 2 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether, after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006, the tree should be removed and replaced.']

Ratio Decidendi

The applicant had made reasonable effort to reach agreement, and the evidence established that the jacaranda tree had caused damage to external elements of the applicant's property, namely the boundary garden wall and pavers, although causation of internal dwelling damage was not established. Having considered the tree's amenity and urban forest benefits, Council's consent requirements, and the limited viable alternatives given the tree's poor long-term prognosis in its confined growing space, the Court was satisfied it could and should make orders for removal of the tree and replacement planting.

Court Disposition

Orders made for removal of the jacaranda tree and replacement planting; exhibits returned other than A and B.

Orders

  • ['Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the jacaranda tree in the front yard of their property.' 'The works in (1) must be carried out in accordance with the...