Grant v Zhao [2019] NSWLEC 1387

Grant v Zhao [2019] NSWLEC 1387

T1 had damaged and decaying structural roots increasing the risk of whole tree failure, and pruning would not adequately address the risk; T2 had a history of branch failure, had damaged the applicants' property including the fence, and was likely in the near future to cause further damage or injury if retained; T3 had no major defects requiring removal but crown reduction over the applicants' property would reduce risk after removal of adjacent trees. Because the applicants had not damaged the trees or contributed to the risk, the respondents as tree owners were to pay for the tree works. Access through the applicants' property was reasonable to avoid impact on the respondents' new lawn,...

Jurisdiction
Australia
Judgment Date
15 August 2019
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) and Dividing Fences Act 1991 (nsw) Concerning Neighbouring Trees and a Common Boundary Fence / Principal Judgment; Final Orders Made After Hearing
Outcome
The application is granted.
Legal Topics
['risk of Damage or Injury From Trees' 'tree Removal and Pruning' 'damage to Common Boundary Fence' 'replacement of Dividing Fence' 'access for Tree Works' 'responsibility for Costs of Works']
['trees (disputes Between Neighbours)' 'dividing Fences' 'property Law'] ['risk of Damage or Injury From Trees' 'tree Removal and Pruning' 'damage to Common Boundary Fence' 'replacement of Dividing Fence' 'access for Tree Works' 'responsibility for Costs of Works']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) and Dividing Fences Act 1991 (nsw) Concerning Neighbouring Trees and a Common Boundary Fence / Principal Judgment; Final Orders Made After Hearing

Legal Issues

  1. 1 ["Have the trees caused, or are they causing, or are they likely in the near future to cause, damage to the applicants' property?" 'Are the trees likely to cause injury in the near future?' 'What other factors are relevant, including those listed at s 12 of the Trees Act?' 'What actions are required to mitigate any risk, including whether tree removal is required or alternatives would allow the trees to remain?' 'Who should pay for any tree works?' 'How can any works be carried out with minimal impact to properties?' 'Have the trees damaged the fence?' 'Does the entire fence need replacing?' 'Who should pay for the fencing works?' 'What timeframes would be appropriate for any works?']

Ratio Decidendi

T1 had damaged and decaying structural roots increasing the risk of whole tree failure, and pruning would not adequately address the risk; T2 had a history of branch failure, had damaged the applicants' property including the fence, and was likely in the near future to cause further damage or injury if retained; T3 had no major defects requiring removal but crown reduction over the applicants' property would reduce risk after removal of adjacent trees. Because the applicants had not damaged the trees or contributed to the risk, the respondents as tree owners were to pay for the tree works. Access through the applicants' property was reasonable to avoid impact on the respondents' new lawn,...

Court Disposition

The application is granted.

Orders

  • ['The application is granted.' "Before 15 January 2020, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove trees T1 and T2 to no more than one metre above ground level; prune T3 to reduce its crown overhanging the...