Cummins v Lyndon [2020] NSWLEC 1527

Cummins v Lyndon [2020] NSWLEC 1527

The Court found that deadwood on the respondent's tree overhangs the applicants' property and is likely to cause future damage and risk of injury. However, the live canopy presented no risk warranting intervention. Limited pruning of deadwood (over 10mm diameter) was justified under the Act to prevent further damage and risk of injury, taking into account the tree’s health, local amenity, ecological, and neighbour relations considerations.

Parties
First Applicant: Jeff Cummins; Second Applicant: Sue Cummins; Respondent: Jennifer Lyndon
Jurisdiction
Australia
Judgment Date
06 October 2020
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Orders Following Hearing
Outcome
Orders made for pruning deadwood; no order for removal or major pruning of live canopy.
Legal Topics
Trees Disputes Between Neighbours, Apprehension of Damage and Injury, Pruning Orders
Environmental Law Property Law Trees Disputes Between Neighbours Apprehension of Damage and Injury Pruning Orders

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Parties

Jeff Cummins

First Applicant

Sue Cummins

Second Applicant

Jennifer Lyndon

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Orders Following Hearing

Legal Issues

  1. 1 Whether the respondent's tree has caused, is causing, or is likely in the near future to cause damage to the applicants' property
  2. 2 Whether the tree is likely to cause injury to any person
  3. 3 Whether the applicants made a reasonable effort to reach agreement with the tree owner before applying to the court

Ratio Decidendi

The Court found that deadwood on the respondent's tree overhangs the applicants' property and is likely to cause future damage and risk of injury. However, the live canopy presented no risk warranting intervention. Limited pruning of deadwood (over 10mm diameter) was justified under the Act to prevent further damage and risk of injury, taking into account the tree’s health, local amenity, ecological, and neighbour relations considerations.

Court Disposition

Orders made for pruning deadwood; no order for removal or major pruning of live canopy.

Orders

  • Within 60 days, the respondent, at her expense, shall prune the Spotted Gum tree to remove all dead branches greater than 10mm in diameter at the branch collar, toward/over the common side or front boundary.
  • All pruning to be completed by an AQF level 3 arborist with appropriate insurances, complying with AS4373:2007.