Hayden v Brown [2023] NSWLEC 1060

Hayden v Brown [2023] NSWLEC 1060

The Applicant made a reasonable effort to reach agreement; Trees 2 and 3 had caused damage to the common boundary fence and Tree 1 was likely to cause damage in the near future; the trees were close to the boundary, the remaining trees were dead and made no significant amenity or environmental contribution, the Applicant had not contributed to the likelihood of damage, and the Respondents had been aware of the risk but had taken no action. The requested tree removal and fence repair orders were reasonable and within the Court's power.

Jurisdiction
Australia
Judgment Date
07 February 2023
Procedural Posture
Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Ex Parte Onsite Hearing; Principal Judgment and Final Orders
Outcome
Application granted.
Legal Topics
['neighbouring Trees' 'damage to Boundary Fence' 'tree Removal Orders' 'fence Repair Orders' 'reasonable Effort to Reach Agreement']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['neighbouring Trees' 'damage to Boundary Fence' 'tree Removal Orders' 'fence Repair Orders' 'reasonable Effort to Reach Agreement']

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Procedural Posture

Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Ex Parte Onsite Hearing; Principal Judgment and Final Orders

Legal Issues

  1. 1 ['Whether the Applicant made a reasonable effort to reach agreement with the Respondents as required by s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees had caused, or were likely to cause in the near future, damage to the Applicant's property for the purposes of s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Court should make orders for removal of Tree 1 and Tree 3 and for repair of the common boundary fence after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The Applicant made a reasonable effort to reach agreement; Trees 2 and 3 had caused damage to the common boundary fence and Tree 1 was likely to cause damage in the near future; the trees were close to the boundary, the remaining trees were dead and made no significant amenity or environmental contribution, the Applicant had not contributed to the likelihood of damage, and the Respondents had been aware of the risk but had taken no action. The requested tree removal and fence repair orders were reasonable and within the Court's power.

Court Disposition

Application granted.

Orders

  • ['The application is granted.' "The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 1 and Tree 3 (as shown in the application) to no more than 300 mm above ground level within 30 days of the date of these orders....