Butcher & anor v Seeman & anor [2014] NSWLEC 1200

Butcher & anor v Seeman & anor [2014] NSWLEC 1200

Only Tree 1 met the jurisdictional test under s 10(2) by presenting a foreseeable risk of damage or injury from dead wood; removal not warranted, but orders for periodic pruning of dead wood are justified. No sufficient evidence for intervention with respect to the other four trees.

Parties
Applicants: N & V Butcher; Respondents: K & C Seeman
Jurisdiction
Australia
Judgment Date
26 September 2014
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application to remove trees dismissed; order made for periodic pruning of one tree.
Legal Topics
Tree Disputes, Neighbour Disputes, Damage to Property, Risk of Injury
Environmental Law Property Law Tree Disputes Neighbour Disputes Damage to Property Risk of Injury

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Parties

N & V Butcher

Applicants

K & C Seeman

Respondents

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 Whether the Court has jurisdiction to make orders for the removal or pruning of trees under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the trees in question pose a real risk of damage to property or injury to persons

Ratio Decidendi

Only Tree 1 met the jurisdictional test under s 10(2) by presenting a foreseeable risk of damage or injury from dead wood; removal not warranted, but orders for periodic pruning of dead wood are justified. No sufficient evidence for intervention with respect to the other four trees.

Court Disposition

Application to remove trees dismissed; order made for periodic pruning of one tree.

Orders

  • The application to remove the five trees is dismissed.
  • By 30 January 2015, the respondents must engage and pay for a Level 3 arborist to remove dead wood in excess of 40mm in diameter at its base from Tree 1 (Eucalyptus resinifera), and inspect the integrity of a specific branch; if imminent risk found, branch to be removed.