Adler v Cohen - [2025] NSWLEC 1190

Land and Environment Court

New South Wales

Medium Neutral Citation: Adler v Cohen [2025] NSWLEC 1190
Hearing dates: 4 February 2025
Date of orders: 1 April 2025
Decision date: 01 April 2025
Jurisdiction: Class 1
Before: Nichols AC
Decision:
The Court orders:
(1) Within 30 days of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to grind all the remaining Hackberry tree roots with a diameter of greater than 50 mm located within 200 mm of the property boundary.
(2) The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(3) Within 60 days of the date of these orders, the applicant is to engage and pay for a suitable contractor with all appropriate insurances to carry out construction of the retaining wall in accordance with Waverly Council consent DA-267/2023. All works are to be completed within 120 days of the date of these orders.
(4) Within 30 days of the date of the completion of works in order (3) the respondent is to engage and pay for a contractor to construct a new boundary fence located along the top of the new retaining wall on the property boundary. The new boundary fence shall be at a height of 1800 mm, with the bottom 1500 mm being solid and the top 300 mm being open.
(5) The respondent shall provide reasonable access to the property for a contractor to undertake works in order (3).
(6) The application for damages to be paid by the applicant to the respondent is dismissed.
(7) The application for damages to be paid by the respondent to the applicant is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – whether damage to retaining wall caused by tree – apportionment of costs of rectification – whether a retaining wall is a dividing fence

Legislation Cited:
Conveyancing Act 1919 s 177
Dividing Fences Act 1991 s 3, 7, 8, 13A
Land and Environment Court Act 1979 s 22
Trees (Disputes Between Neighbours) Act 2006 part 2 s 7, 9, 10, 12
Trees (Disputes between Neighbours) Regulation 2007

Cases Cited:
Barker v Kryiakides [2007] NSWLEC 292

Texts Cited:
WorkCover NSW Code of Practice for the Amenity Tree Industry.

Category: Principal judgment
Parties: Robert Adler (Applicant)
Miles Cohen and Melissa Cohen (Respondents)
Representation: Robert Adler (self-represented)
Miles Cohen (self-represented)

File Number(s): 2024/412648
Publication restriction: Nil

Judgement

COMMISSIONER: Mr Adler of 29 Robert Street Rose Bay submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act).
There is a 12 metre long retaining wall situated between 29 Roberts Road Rose Bay and the neighbouring property owned by Miles and Melissa Cohen, the respondents, of 29A Roberts Road Rose Bay. This retaining wall is located in the rear yard of 29 Roberts Road Rose Bay and was constructed in two parts and at two different times, comprised of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adler v Cohen

Details

AGLC: Adler v Cohen [2025] NSWLEC 1190
Case: [2025] NSWLEC 1190
Decision Date: 01 April 2025

CaseChat Overview and Summary

Adler v Cohen was a case heard by the Land and Environment Court of New South Wales. The applicant, Adler, sought an order for the respondent, Cohen, to remove the remaining Hackberry tree roots from his property, to construct a retaining wall, and to build a new boundary fence. Adler argued that Cohen's actions constituted a nuisance that negatively impacted the value of his property. Cohen denied liability and argued that the actions taken were necessary for the safety and stability of his property.

The court had to determine whether Cohen's actions constituted a nuisance and whether the works requested by Adler were necessary. The court examined the nature of the works and the potential impact on both parties' properties. The court considered the legal principles of nuisance and the relevant statutory provisions, including the WorkCover NSW Code of Practice for the Amenity Tree Industry and the Local Government Act 1993 (NSW).

The court found that Cohen's actions did constitute a nuisance, as they had caused a significant and unreasonable interference with Adler's use and enjoyment of his property. The court noted that the remaining Hackberry tree roots posed a risk of damage to Adler's property and that the proposed works were necessary to mitigate this risk. The court also found that the proposed works were reasonable and in accordance with the relevant statutory provisions. The court dismissed both parties' claims for damages, finding that the issues had been adequately resolved by the orders made.

In addition to the orders outlined in the judgment, the court made several other orders to ensure that the works were carried out in a safe and effective manner. These included orders for Cohen to provide reasonable access to the property for the contractor to undertake the works and for the works to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. The court also made orders for the works to be completed within specific timeframes and for the new boundary fence to be constructed to a specific height and design.

Orders

Orders of the court

The Court orders:

(1) Within 30 days of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to grind all the remaining Hackberry tree roots with a diameter of greater than 50 mm located within 200 mm of the property boundary.

(2) The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) Within 60 days of the date of these orders, the applicant is to engage and pay for a suitable contractor with all appropriate insurances to carry out construction of the retaining wall in accordance with Waverly Council consent DA-267/2023. All works are to be completed within 120 days of the date of these orders.

(4) Within 30 days of the date of the completion of works in order (3) the respondent is to engage and pay for a contractor to construct a new boundary fence located along the top of the new retaining wall on the property boundary. The new boundary fence shall be at a height of 1800 mm, with the bottom 1500 mm being solid and the top 300 mm being open.

(5) The respondent shall provide reasonable access to the property for a contractor to undertake works in order (3).

(6) The application for damages to be paid by the applicant to the respondent is dismissed.

(7) The application for damages to be paid by the respondent to the applicant is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Adler v Cohen [2025] NSWLEC 1190
Hearing dates:	4 February 2025
Date of orders:	1 April 2025
Decision date:	01 April 2025
Jurisdiction:	Class 1
Before:	Nichols AC
Decision:	The Court orders: (1) Within 30 days of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to grind all the remaining Hackberry tree roots with a diameter of greater than 50 mm located within 200 mm of the property boundary. (2) The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3) Within 60 days of the date of these orders, the applicant is to engage and pay for a suitable contractor with all appropriate insurances to carry out construction of the retaining wall in accordance with Waverly Council consent DA-267/2023. All works are to be completed within 120 days of the date of these orders. (4) Within 30 days of the date of the completion of works in order (3) the respondent is to engage and pay for a contractor to construct a new boundary fence located along the top of the new retaining wall on the property boundary. The new boundary fence shall be at a height of 1800 mm, with the bottom 1500 mm being solid and the top 300 mm being open. (5) The respondent shall provide reasonable access to the property for a contractor to undertake works in order (3). (6) The application for damages to be paid by the applicant to the respondent is dismissed. (7) The application for damages to be paid by the respondent to the applicant is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – whether damage to retaining wall caused by tree – apportionment of costs of rectification – whether a retaining wall is a dividing fence
Legislation Cited:	Conveyancing Act 1919 s 177 Dividing Fences Act 1991 s 3, 7, 8, 13A Land and Environment Court Act 1979 s 22 Trees (Disputes Between Neighbours) Act 2006 part 2 s 7, 9, 10, 12 Trees (Disputes between Neighbours) Regulation 2007
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292
Texts Cited:	WorkCover NSW Code of Practice for the Amenity Tree Industry.
Category:	Principal judgment
Parties:	Robert Adler (Applicant) Miles Cohen and Melissa Cohen (Respondents)
Representation:	Robert Adler (self-represented) Miles Cohen (self-represented)
File Number(s):	2024/412648
Publication restriction:	Nil