Chapman & anor v Harris & anor [2012] NSWLEC 1183

Chapman & anor v Harris & anor [2012] NSWLEC 1183

Because limbs from the respondents' trees had damaged the applicants' roof, the Court had jurisdiction to make orders. After considering the statutory matters in s 12, the trees were healthy, contributed to amenity, biodiversity, habitat, natural landscape and public amenity, and the identified risks from deadwood and slender limbs could be addressed by regular pruning rather than removal. Removal would therefore be disproportionate, but compensation for quoted roof repairs was appropriate while sarking was a preventative measure to be undertaken at the applicants' own expense if desired.

Jurisdiction
Australia
Judgment Date
09 July 2012
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 for Removal of Trees and Compensation / Principal Judgment After Onsite Hearing
Outcome
Application for tree removal dismissed; orders made for regular pruning of two trees; application for compensation upheld in part.
Legal Topics
['damage to Property From Trees' 'risk of Injury From Falling Limbs' 'tree Removal' 'pruning Orders' 'compensation for Roof Damage']
['trees Disputes Between Neighbours' 'property' 'land and Environment'] ['damage to Property From Trees' 'risk of Injury From Falling Limbs' 'tree Removal' 'pruning Orders' 'compensation for Roof Damage']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 for Removal of Trees and Compensation / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether limbs from the respondents' trees damaged the applicants' roof so as to enliven jurisdiction under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the two Blackbutt trees should be removed or whether pruning would adequately address the risk of future damage and injury.' 'Whether the applicants should receive compensation for roof repairs and sarking.']

Ratio Decidendi

Because limbs from the respondents' trees had damaged the applicants' roof, the Court had jurisdiction to make orders. After considering the statutory matters in s 12, the trees were healthy, contributed to amenity, biodiversity, habitat, natural landscape and public amenity, and the identified risks from deadwood and slender limbs could be addressed by regular pruning rather than removal. Removal would therefore be disproportionate, but compensation for quoted roof repairs was appropriate while sarking was a preventative measure to be undertaken at the applicants' own expense if desired.

Court Disposition

Application for tree removal dismissed; orders made for regular pruning of two trees; application for compensation upheld in part.

Orders

  • ['The application to remove the trees is dismissed.' 'The respondents are to pay the applicants $759 within 14 days of the date of these orders.' "The respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune both trees to remove deadwood...