Taylor v Guttenberg [2011] NSWLEC 1159

Taylor v Guttenberg [2011] NSWLEC 1159

While the possibility existed that dead wood could fall and cause injury, there was insufficient evidence of likely damage or injury from the live branches or the whole tree in the near future. Thus, removal of the tree was refused, but pruning of dead wood was ordered as a proportionate remedy.

Parties
Applicants: P & K Taylor; Respondents: M & J Guttenberg
Jurisdiction
Australia
Judgment Date
22 June 2011
Procedural Posture
Tree Dispute Application / Final Decision After Hearing
Outcome
Application upheld in part: tree removal refused; pruning of dead wood ordered.
Legal Topics
Tree Disputes Between Neighbours, Pruning or Removal of Trees, Injury or Damage Caused by Trees
Environmental Law Property Law Tree Disputes Between Neighbours Pruning or Removal of Trees Injury or Damage Caused by Trees

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Parties

P & K Taylor

Applicants

M & J Guttenberg

Respondents

Procedural Posture

Tree Dispute Application / Final Decision After Hearing

Legal Issues

  1. 1 Whether the tree on the respondents' property is likely to cause damage to property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 What, if any, orders should be made to remedy, restrain or prevent damage or injury

Ratio Decidendi

While the possibility existed that dead wood could fall and cause injury, there was insufficient evidence of likely damage or injury from the live branches or the whole tree in the near future. Thus, removal of the tree was refused, but pruning of dead wood was ordered as a proportionate remedy.

Court Disposition

Application upheld in part: tree removal refused; pruning of dead wood ordered.

Orders

  • The application to remove the tree is dismissed.
  • The respondents are to engage and pay for an AQF level 3 arborist with appropriate insurances to remove all dead wood down to 15mm in diameter from the portions of the tree that overhang the applicants' property to a distance of 2m inside the respondents' property.