Davis v Newnan [2021] NSWLEC 1562

Davis v Newnan [2021] NSWLEC 1562

The Court was satisfied that the applicant had made a reasonable effort to reach agreement, that the tree was located on the respondents' land, and that although the likelihood of damage to the applicant's property was not established, the tree's pronounced lean, trunk cracks and extensive fungal decay made catastrophic failure probable in the near future and likely to cause injury, particularly to the respondents. Because s 10(2)(b) was engaged and the tree provided limited benefits compared with the risk, urgent removal orders were warranted.

Jurisdiction
Australia
Judgment Date
24 June 2021
Procedural Posture
Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Orders After Onsite Hearing
Outcome
Application granted.
Legal Topics
['apprehension of Damage and Injury' 'removal of Tree on Adjoining Land' 'reasonable Effort to Reach Agreement' 'risk of Injury From Tree Failure']
['trees Disputes Between Neighbours' 'land and Environment'] ['apprehension of Damage and Injury' 'removal of Tree on Adjoining Land' 'reasonable Effort to Reach Agreement' 'risk of Injury From Tree Failure']

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Procedural Posture

Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Orders After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the owners of the land on which the tree was situated as required by s 10(1)(a) of the Trees (Disputes between Neighbours) Act 2006.' "Whether the tree was wholly or principally situated on the respondents' land." "Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the tree was likely to cause injury to any person within s 10(2)(b) of the Trees (Disputes between Neighbours) Act 2006.' 'What orders, if any, should be made after considering the matters in s 12 of the Trees (Disputes between Neighbours) Act 2006.']

Ratio Decidendi

The Court was satisfied that the applicant had made a reasonable effort to reach agreement, that the tree was located on the respondents' land, and that although the likelihood of damage to the applicant's property was not established, the tree's pronounced lean, trunk cracks and extensive fungal decay made catastrophic failure probable in the near future and likely to cause injury, particularly to the respondents. Because s 10(2)(b) was engaged and the tree provided limited benefits compared with the risk, urgent removal orders were warranted.

Court Disposition

Application granted.

Orders

  • ['The application is granted.' 'Within 21 days of the date of these Orders, the respondents shall, at their expense, remove the Eucalyptus nicholii from their front yard to a maximum height of 30cm above the ground level, and remove all refuse.' 'The works in Order 2 shall be completed by minimum AQF level 3...