Holmes v Walburn & anor [2010] NSWLEC 1090

Holmes v Walburn & anor [2010] NSWLEC 1090

Jurisdiction exercised for group of trees causing or likely to cause harm, with consent orders for pruning and maintenance; no jurisdiction or order for the Casuarina or Ti-tree as insufficient evidence of current or likely future harm or injury was established under the Act.

Parties
Applicants: P & R Holmes; Respondents: A Walburn & J Wilkes
Jurisdiction
Australia
Judgment Date
20 April 2010
Procedural Posture
Tree Dispute Application / Ex Tempore Judgment
Outcome
Orders made by consent for pruning and maintenance of certain trees; application dismissed regarding Casuarina and Ti-tree.
Legal Topics
Tree Disputes Between Neighbours, Jurisdiction Under Trees (disputes Between Neighbours) Act 2006, Pruning Orders
Environmental Law Property Law Tree Disputes Between Neighbours Jurisdiction Under Trees (disputes Between Neighbours) Act 2006 Pruning Orders

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Parties

P & R Holmes

Applicants

A Walburn & J Wilkes

Respondents

Procedural Posture

Tree Dispute Application / Ex Tempore Judgment

Legal Issues

  1. 1 Whether the Court has jurisdiction to deal with the trees under the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether orders should be made for pruning or removal of certain trees
  3. 3 Whether past or likely future damage or risk of injury exists

Ratio Decidendi

Jurisdiction exercised for group of trees causing or likely to cause harm, with consent orders for pruning and maintenance; no jurisdiction or order for the Casuarina or Ti-tree as insufficient evidence of current or likely future harm or injury was established under the Act.

Court Disposition

Orders made by consent for pruning and maintenance of certain trees; application dismissed regarding Casuarina and Ti-tree.

Orders

  • The respondents are to prune, back to the boundary of 3 Federal Avenue, Burrill Lake with the applicants' property, all of the trees adjacent to this boundary to the south of the Casuarina located approximately three-quarters of the way to the rear boundary of the respondents' property.
  • The pruning in (1) is to be repeated as necessary to ensure that the trees to be pruned are maintained pruned as required by (1).