Somerville v Passfield [2021] NSWLEC 1137

Somerville v Passfield [2021] NSWLEC 1137

The Pt 2A application was refused because it concerned only one tree that was not part of a hedge. The Pt 2 application was granted only to the extent of pruning orders because the applicant had made reasonable efforts to reach agreement, lower branches rubbing against roofs and guttering were likely to cause minor damage in the near future, and limited pruning would avoid that damage. The applicant was ordered to pay because the required pruning was relatively low cost and some corrective pruning was needed because of his past pruning.

Jurisdiction
Australia
Judgment Date
10 March 2021
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006, Pt 2 and Pt 2 a / Principal Judgment Following Onsite Hearing
Outcome
Pt 2A application refused; Pt 2 application granted to the extent of pruning orders.
Legal Topics
['part 2 a Hedge Application' 'part 2 Tree Damage Application' 'damage to Property' 'nuisance' 'pruning Orders' 'neighbouring Tree Overhang']
['trees Disputes Between Neighbours' 'land and Environment Court'] ['part 2 a Hedge Application' 'part 2 Tree Damage Application' 'damage to Property' 'nuisance' 'pruning Orders' 'neighbouring Tree Overhang']

Case Brief

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006, Pt 2 and Pt 2 a / Principal Judgment Following Onsite Hearing

Legal Issues

  1. 1 ['Whether Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applied to a single tree that was not part of a hedge.' "Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person." 'Whether the applicant had made reasonable efforts to reach agreement with the respondent.' 'What pruning orders, if any, should be made and who should pay for the works.']

Ratio Decidendi

The Pt 2A application was refused because it concerned only one tree that was not part of a hedge. The Pt 2 application was granted only to the extent of pruning orders because the applicant had made reasonable efforts to reach agreement, lower branches rubbing against roofs and guttering were likely to cause minor damage in the near future, and limited pruning would avoid that damage. The applicant was ordered to pay because the required pruning was relatively low cost and some corrective pruning was needed because of his past pruning.

Court Disposition

Pt 2A application refused; Pt 2 application granted to the extent of pruning orders.

Orders

  • ['The Pt 2A application is refused.' 'The Pt 2 application is granted to the extent of the orders below.' "Within 30 days of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the tree as follows (and see...