Zadel v Cox [2012] NSWLEC 1040

Zadel v Cox [2012] NSWLEC 1040

The tree's dead wood has caused damage to the applicant’s property and could continue to do so. The seriousness and frequency of the damage warrant annual pruning but do not justify removal. The respondent must pay for pruning; costs should not be shared given lack of evidence about relocation and material choice, and applicant's prior efforts.

Parties
Applicant: Mr M Zadel; Respondent: Ms A Cox
Jurisdiction
Australia
Judgment Date
24 February 2012
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment
Outcome
Application to remove tree dismissed; annual pruning ordered.
Legal Topics
Tree Disputes, Neighbour Disputes, Damage to Property, Pruning Orders
Property Law Environmental Law Tree Disputes Neighbour Disputes Damage to Property Pruning Orders

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Parties

Mr M Zadel

Applicant

Ms A Cox

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment

Legal Issues

  1. 1 Whether the Eucalyptus tree on the respondent's property has caused or is likely to cause damage to the applicant's property or injury to any person
  2. 2 Whether removal or pruning of the tree should be ordered under the Trees (Disputes Between Neighbours) Act 2006

Ratio Decidendi

The tree's dead wood has caused damage to the applicant’s property and could continue to do so. The seriousness and frequency of the damage warrant annual pruning but do not justify removal. The respondent must pay for pruning; costs should not be shared given lack of evidence about relocation and material choice, and applicant's prior efforts.

Court Disposition

Application to remove tree dismissed; annual pruning ordered.

Orders

  • Application to remove the tree dismissed.
  • Respondent to engage and pay for an AQF level 3 arborist to remove all dead wood greater than or equal to 30 mm diameter at its base (including stubs) from all parts of the tree that overhang the applicant's property to a distance of 5m inside the respondent's property.