Torrez v Clifford [2022] NSWLEC 1495

Torrez v Clifford [2022] NSWLEC 1495

The Applicant had made reasonable efforts to reach agreement, the Respondents did not dispute that the tree had already caused damage, and the onsite inspection showed long overextended branches and large dead branches remained above the Applicant's property, including over his dwelling. The Court was satisfied that the tree had caused damage and was likely to cause further damage in the near future, enlivening jurisdiction under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006. After considering the matters in s 12, pruning was found to sufficiently mitigate the likelihood of further branch failure and damage, while allowing the Respondents to remove the tree within 60 days if...

Jurisdiction
Australia
Judgment Date
12 September 2022
Procedural Posture
Class 2 Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment and Orders
Outcome
Application granted; pruning orders made, subject to lapse if the tree is removed within 60 days.
Legal Topics
['neighbouring Tree Overhanging Property' 'damage to Property From Falling Branches' 'pruning Orders' 'council Consent to Remove Tree' 'costs Order Jurisdiction']
['trees Disputes Between Neighbours' 'property' 'environmental and Planning Law'] ['neighbouring Tree Overhanging Property' 'damage to Property From Falling Branches' 'pruning Orders' 'council Consent to Remove Tree' 'costs Order Jurisdiction']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Applicant made a reasonable effort to reach agreement with the Respondents before seeking orders under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the tree has caused, is causing, or is likely in the near future to cause damage to the Applicant's property." 'Whether orders should be made requiring pruning of the tree despite the Respondents having obtained Council consent to remove it.' 'Whether a Commissioner of the Court could make the costs order sought by the Applicant.']

Ratio Decidendi

The Applicant had made reasonable efforts to reach agreement, the Respondents did not dispute that the tree had already caused damage, and the onsite inspection showed long overextended branches and large dead branches remained above the Applicant's property, including over his dwelling. The Court was satisfied that the tree had caused damage and was likely to cause further damage in the near future, enlivening jurisdiction under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006. After considering the matters in s 12, pruning was found to sufficiently mitigate the likelihood of further branch failure and damage, while allowing the Respondents to remove the tree within 60 days if...

Court Disposition

Application granted; pruning orders made, subject to lapse if the tree is removed within 60 days.

Orders

  • ['The application is granted.' "The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following pruning works to the tree within 60 days of the date of these orders: (a) remove all deadwood greater than 40 mm in diameter; (b)...