Garbutt v Nichols [2025] NSWLEC 1035

Garbutt v Nichols [2025] NSWLEC 1035

The only identified likely damage was minor contact of branches and foliage with the applicants' dwelling, which can be remedied by pruning and does not warrant removal of the tree. The applicants are required under their development consent to maintain clearance from the dwelling, justifying an order for pruning rather than removal. Pruning is to be undertaken by the applicants at their cost, with access allowed by the respondents.

Parties
First Applicant: Daniel Garbutt; Second Applicant: Amy Garbutt; First Respondent: Denise Nichols; Second Respondent: Christine Bird
Jurisdiction
Australia
Judgment Date
09 January 2025
Procedural Posture
Trees (disputes Between Neighbours) Act 2006 Pt 2 Application / Principal Judgment
Outcome
Application granted; orders for pruning of the tree, not removal, made.
Legal Topics
Tree Disputes, Nuisance, Neighbouring Property, Pruning of Trees, Bushfire Protection, Obligations Under Development Consent
Environmental Law Property Law Tree Disputes Nuisance Neighbouring Property Pruning of Trees Bushfire Protection Obligations Under Development Consent

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Parties

Daniel Garbutt

First Applicant

Amy Garbutt

Second Applicant

Denise Nichols

First Respondent

Christine Bird

Second Respondent

Procedural Posture

Trees (disputes Between Neighbours) Act 2006 Pt 2 Application / Principal Judgment

Legal Issues

  1. 1 Whether the neighbouring blackbean tree is likely to cause damage or injury under s 10 of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether removal or pruning of the tree is required to prevent damage or injury
  3. 3 Relevance of conditions in the applicants' development consent to maintenance and pruning obligations

Ratio Decidendi

The only identified likely damage was minor contact of branches and foliage with the applicants' dwelling, which can be remedied by pruning and does not warrant removal of the tree. The applicants are required under their development consent to maintain clearance from the dwelling, justifying an order for pruning rather than removal. Pruning is to be undertaken by the applicants at their cost, with access allowed by the respondents.

Court Disposition

Application granted; orders for pruning of the tree, not removal, made.

Orders

  • The application is granted as per the following orders.
  • The applicants are to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to prune the tree within 60 days, and annually thereafter in February, to remove all branches extending over their property, in accordance with AS4373:2007 and Safe Work Australia (2016) guidelines. This may...