McLellan & anor v Hull & anor; Randell & anor v Hull & anor [2013] NSWLEC 1209

McLellan & anor v Hull & anor; Randell & anor v Hull & anor [2013] NSWLEC 1209

The Court was satisfied under s 10(2) that overhanging dead wood of a size observed over the McLellan property could in the near future cause damage, and that branches in direct contact with the Randell dwelling roof and service lines could in the near future cause damage, so limited pruning and dead wood removal orders were warranted. The Court was not satisfied that alleged debris, gutter blockage, asbestos-roof concerns or Sooty Mould justified further orders, because the evidence did not establish relevant damage or likely injury, the Sooty Mould issue was outside the Act as secondary to the tree, and in any event ordinary urban tree debris and mould cleaning would not justify...

Jurisdiction
Australia
Judgment Date
31 October 2013
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Applications for Pruning Orders
Outcome
Applications upheld in part; pruning ordered.
Legal Topics
['damage to Property From Trees' 'pruning of Overhanging Branches' 'dead Wood Removal' 'sooty Mould' 'near Future Damage' 'urban Tree Debris']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Procedure'] ['damage to Property From Trees' 'pruning of Overhanging Branches' 'dead Wood Removal' 'sooty Mould' 'near Future Damage' 'urban Tree Debris']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Applications for Pruning Orders

Legal Issues

  1. 1 ["Whether branches and dead wood from the respondents' oak tree had caused, were causing, or were likely in the near future to cause damage to the applicants' properties under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether concerns about Sooty Mould and debris from the tree could found orders under Part 2 of the Act.' 'Whether pruning orders should be made having regard to the health, amenity and habitat value of the tree.']

Ratio Decidendi

The Court was satisfied under s 10(2) that overhanging dead wood of a size observed over the McLellan property could in the near future cause damage, and that branches in direct contact with the Randell dwelling roof and service lines could in the near future cause damage, so limited pruning and dead wood removal orders were warranted. The Court was not satisfied that alleged debris, gutter blockage, asbestos-roof concerns or Sooty Mould justified further orders, because the evidence did not establish relevant damage or likely injury, the Sooty Mould issue was outside the Act as secondary to the tree, and in any event ordinary urban tree debris and mould cleaning would not justify...

Court Disposition

Applications upheld in part; pruning ordered.

Orders

  • ['The applications are upheld in part.' "Within 40 days of the date of these orders, the Respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove all dead wood 50mm or greater in diameter at its base from all parts of the tree overhanging 30 Woodbine Street and 2...