Tripolone & anor v Baddeley & anor [2016] NSWLEC 1058

Tripolone & anor v Baddeley & anor [2016] NSWLEC 1058

The Court was satisfied that branches falling from the respondents' tree had caused damage to the applicants' property and that dead branches overhanging the applicants' property would predictably fail and could cause future damage or injury, so s 10(2) was satisfied. However, the tree was observed to be healthy and mature with no significant structural defects, and after considering the matters in s 12 there was no arboricultural basis to order removal of the tree or significant pruning back to the boundary. The appropriate intervention was removal, at the respondents' expense, of dead wood of specified size from branches overhanging the applicants' property and within 3m of the dividing...

Jurisdiction
Australia
Judgment Date
17 February 2016
Procedural Posture
Class 2 Application Under S 7, Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Orders
Outcome
Application granted in part; removal refused and pruning of dead wood ordered.
Legal Topics
['damage to Property From Trees' 'risk of Injury From Trees' 'tree Removal' 'pruning of Overhanging Branches' 'dead Wood' 'leaf Litter']
['trees Disputes Between Neighbours' 'property Law' 'environmental Planning and Protection'] ['damage to Property From Trees' 'risk of Injury From Trees' 'tree Removal' 'pruning of Overhanging Branches' 'dead Wood' 'leaf Litter']

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Procedural Posture

Class 2 Application Under S 7, Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Orders

Legal Issues

  1. 1 ["Whether the Blackbutt has caused, is causing, or is likely in the near future to cause damage to the applicants' property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Blackbutt is likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the appropriate order was removal of the tree, pruning to the boundary, or removal of dead wood.']

Ratio Decidendi

The Court was satisfied that branches falling from the respondents' tree had caused damage to the applicants' property and that dead branches overhanging the applicants' property would predictably fail and could cause future damage or injury, so s 10(2) was satisfied. However, the tree was observed to be healthy and mature with no significant structural defects, and after considering the matters in s 12 there was no arboricultural basis to order removal of the tree or significant pruning back to the boundary. The appropriate intervention was removal, at the respondents' expense, of dead wood of specified size from branches overhanging the applicants' property and within 3m of the dividing...

Court Disposition

Application granted in part; removal refused and pruning of dead wood ordered.

Orders

  • ['The application to remove the tree is dismissed.' "By 30 March 2016 the respondents are to engage and pay for an arborist with a minimum AQF level 3 qualification in Arboriculture, and with appropriate insurance cover, to remove all dead wood with a diameter of 40mm or more at its base from all branches...