Brown v Baker [2024] NSWLEC 1124

Brown v Baker [2024] NSWLEC 1124

The applicant made a reasonable effort to reach agreement, and the respondent's tree had caused damage by displacing the fence and pavers. However, the tree's benefits were significant and the property damage and repair works were relatively minor, so removal of the tree was not justified. Orders were therefore made only for repair or replacement of the affected part of the common boundary fence at the respondent's expense.

Jurisdiction
Australia
Judgment Date
13 March 2024
Procedural Posture
Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Application granted to the extent of orders requiring repair or replacement of parts of the common boundary fence; tree removal not ordered.
Legal Topics
['pt 2 Application' 'damage to Neighbouring Property' 'whether Tree Removal Is Required' 'orders for Fence Repair']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment Court Proceedings'] ['pt 2 Application' 'damage to Neighbouring Property' 'whether Tree Removal Is Required' 'orders for Fence Repair']

Case Brief

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Procedural Posture

Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication

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 respondent's tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property." 'Whether the tree should be removed or whether orders for repair of the common boundary fence are sufficient.']

Ratio Decidendi

The applicant made a reasonable effort to reach agreement, and the respondent's tree had caused damage by displacing the fence and pavers. However, the tree's benefits were significant and the property damage and repair works were relatively minor, so removal of the tree was not justified. Orders were therefore made only for repair or replacement of the affected part of the common boundary fence at the respondent's expense.

Court Disposition

Application granted to the extent of orders requiring repair or replacement of parts of the common boundary fence; tree removal not ordered.

Orders

  • ['The application is granted to the extent of the following orders.' 'Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to replace or repair all parts of the common boundary fence within 1 metre of the tree, or as otherwise required, so that the fence is in...