Oaten v Robinson [2012] NSWLEC 1028

Oaten v Robinson [2012] NSWLEC 1028

The applicant's limited efforts to contact the respondent did not prevent determination because the parties had until the determination to reach agreement and some agreement occurred during the hearing. Although the evidence was inadequate to prove the compensation claim or justify removal, dead wood exceeding 20mm on trees 4, 5, 9, 11 and 12 close to the boundary was, on the bare preponderance of probability, likely in the near future to damage the applicant's property or cause injury if it fell. No tree was structurally defective or dangerous enough to warrant removal, so the appropriate order was limited pruning of dead wood.

Jurisdiction
Australia
Judgment Date
10 February 2012
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Oral Decision
Outcome
Application upheld in part; removal refused; pruning ordered; compensation refused.
Legal Topics
['damage to Property From Trees' 'risk of Injury From Trees' 'compensation' 'reasonable Effort to Reach Agreement' 'tree Pruning and Removal']
['environmental Law' 'land and Environment Court' 'trees Disputes Between Neighbours'] ['damage to Property From Trees' 'risk of Injury From Trees' 'compensation' 'reasonable Effort to Reach Agreement' 'tree Pruning and Removal']

Case Brief

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Oral Decision

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the owner of the land on which the trees were situated under s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether any of the respondent's trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property under s 10(2)(a)." "Whether any of the respondent's trees were likely to cause injury to any person under s 10(2)(b)." 'Whether tree removal, pruning, or compensation should be ordered.']

Ratio Decidendi

The applicant's limited efforts to contact the respondent did not prevent determination because the parties had until the determination to reach agreement and some agreement occurred during the hearing. Although the evidence was inadequate to prove the compensation claim or justify removal, dead wood exceeding 20mm on trees 4, 5, 9, 11 and 12 close to the boundary was, on the bare preponderance of probability, likely in the near future to damage the applicant's property or cause injury if it fell. No tree was structurally defective or dangerous enough to warrant removal, so the appropriate order was limited pruning of dead wood.

Court Disposition

Application upheld in part; removal refused; pruning ordered; compensation refused.

Orders

  • ['The application is upheld in part; tree removal is refused but some pruning of dead wood is allowed.' 'The claim for compensation is dismissed.' "Within 30 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood in excess of 20mm from trees...