Jamieson v Tho and Hoang [2019] NSWLEC 1092

Jamieson v Tho and Hoang [2019] NSWLEC 1092

Because large deadwood and overextended lower branches in the respondents' gum tree were likely to cause damage to the applicants' property or injury in the near future, the Court was satisfied it had power to make pruning and inspection orders under the Trees Act. The Court could not order removal of concrete unrelated to the tree or to damage or injury the tree might cause.

Jurisdiction
Australia
Judgment Date
28 February 2019
Procedural Posture
Class 2 Trees Dispute Application / Principal Judgment and Final Orders
Outcome
Orders made requiring the respondents to engage and pay for an arborist to prune and inspect the gum tree; no order made for removal of the concrete slab.
Legal Topics
['risk of Injury or Damage From Tree' 'pruning Orders' 'court Jurisdiction Under the Trees (disputes Between Neighbours) Act 2006 (nsw)' 'neighbouring Property Overhang']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court Jurisdiction'] ['risk of Injury or Damage From Tree' 'pruning Orders' 'court Jurisdiction Under the Trees (disputes Between Neighbours) Act 2006 (nsw)' 'neighbouring Property Overhang']

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Procedural Posture

Class 2 Trees Dispute Application / Principal Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the gum tree has caused, is causing, or is likely in the near future to cause damage to the applicants' property, or is likely to cause injury to any person." 'Whether the Court could order pruning or removal of hazardous branches from the tree.' 'Whether the Court could order removal of a concrete slab unrelated to the tree.' 'Which matters under s 12 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) were relevant to any orders.']

Ratio Decidendi

Because large deadwood and overextended lower branches in the respondents' gum tree were likely to cause damage to the applicants' property or injury in the near future, the Court was satisfied it had power to make pruning and inspection orders under the Trees Act. The Court could not order removal of concrete unrelated to the tree or to damage or injury the tree might cause.

Court Disposition

Orders made requiring the respondents to engage and pay for an arborist to prune and inspect the gum tree; no order made for removal of the concrete slab.

Orders

  • ["Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works to the gum tree near their rear boundary: (a) remove deadwood greater than 25 mm diameter above...