McClintock & Anor v Lah & Anor [2017] NSWLEC 1561

McClintock & Anor v Lah & Anor [2017] NSWLEC 1561

The Court was satisfied that dead branches falling from the respondents' Blackbutt had caused damage to the applicants' roof on two occasions and that dead or declining branches of the tree, although within normal and expected limits, were of a size that could cause further property damage or injury when they fell. The jurisdictional requirements of the Trees (Disputes Between Neighbours) Act 2006 were met, and pruning and biennial maintenance orders were warranted. The evidence did not justify removal of the entire tree, soil remediation, or biannual inspection and pruning, but the respondents had been on notice since 2013 and were ordered to reimburse the applicants' $1000 insurance...

Jurisdiction
Australia
Judgment Date
06 October 2017
Procedural Posture
Class 2 Application Under S 7, Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Pruning and compensation ordered.
Legal Topics
['damage to Property From Overhanging Tree Branches' 'risk of Injury From Tree Branches' 'pruning Orders' 'compensation for Insurance Excess' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['damage to Property From Overhanging Tree Branches' 'risk of Injury From Tree Branches' 'pruning Orders' 'compensation for Insurance Excess' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under S 7, Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the Blackbutt on the respondents' land had caused, was causing, or was likely in the near future to cause damage to the applicants' property." 'Whether the Blackbutt was likely to cause injury to any person.' 'Whether orders should be made for pruning, monitoring, soil remediation, removal of the tree, compensation or reimbursement of costs.' 'Whether the applicants made a reasonable effort to reach agreement with the respondents.']

Ratio Decidendi

The Court was satisfied that dead branches falling from the respondents' Blackbutt had caused damage to the applicants' roof on two occasions and that dead or declining branches of the tree, although within normal and expected limits, were of a size that could cause further property damage or injury when they fell. The jurisdictional requirements of the Trees (Disputes Between Neighbours) Act 2006 were met, and pruning and biennial maintenance orders were warranted. The evidence did not justify removal of the entire tree, soil remediation, or biannual inspection and pruning, but the respondents had been on notice since 2013 and were ordered to reimburse the applicants' $1000 insurance...

Court Disposition

Pruning and compensation ordered.

Orders

  • ["The respondents are to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3, and with appropriate insurance cover, to remove all dead and declining branches down to 30mm in diameter at their base from all parts of the Blackbutt which overhang the applicants' property to a...