Milne v Berton [2023] NSWLEC 1430

Milne v Berton [2023] NSWLEC 1430

The 14 Bhutan cypress trees on the respondent's property have caused and are likely to cause further damage to the dividing retaining wall, meeting the requirements of the Trees (Disputes Between Neighbours) Act 2006. Reasonable alternatives to removal would significantly increase cost and complexity given the structural condition of the trees and the wall. The applicant made reasonable attempts at resolution and gave proper notice. The orders for removal, wall and fence works, as well as replanting, are appropriate and provided for within the legislative framework.

Jurisdiction
Australia
Judgment Date
08 August 2023
Procedural Posture
Tree Dispute Application (part 2, Trees (disputes Between Neighbours) Act 2006) / Final Orders After Final Hearing
Outcome
Application upheld to the extent of the listed orders by consent.
Legal Topics
['damage Caused by Trees' 'dividing Fences' 'tree Removal' 'boundary Disputes' 'replacement Planting']
['property Law' 'environmental Law' 'neighbour Disputes'] ['damage Caused by Trees' 'dividing Fences' 'tree Removal' 'boundary Disputes' 'replacement Planting']

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Procedural Posture

Tree Dispute Application (part 2, Trees (disputes Between Neighbours) Act 2006) / Final Orders After Final Hearing

Legal Issues

  1. 1 ["Whether the respondent's cypress trees caused or are likely to cause damage to the applicant's property or dividing fence" 'Whether orders for tree removal, wall and fence works are appropriate' 'Whether requirements under the Trees (Disputes Between Neighbours) Act 2006 and Dividing Fences Act 1991 are met']

Ratio Decidendi

The 14 Bhutan cypress trees on the respondent's property have caused and are likely to cause further damage to the dividing retaining wall, meeting the requirements of the Trees (Disputes Between Neighbours) Act 2006. Reasonable alternatives to removal would significantly increase cost and complexity given the structural condition of the trees and the wall. The applicant made reasonable attempts at resolution and gave proper notice. The orders for removal, wall and fence works, as well as replanting, are appropriate and provided for within the legislative framework.

Court Disposition

Application upheld to the extent of the listed orders by consent.

Orders

  • ['Respondent to engage and pay for arborist to remove the 14 Bhutan cypress trees within 30 days, using Safe Work Australia guidelines.' 'Applicant and respondent to each obtain and exchange two quotes for demolishing and replacing boundary wall (approx 25m), then jointly engage contractor at quote nearest the...