Heller & Anor v Dan & Anor [2008] NSWLEC 90

Heller & Anor v Dan & Anor [2008] NSWLEC 90

The two overhanging branches of the Flooded Gum had current or likely decay at their collars and were likely to pose a risk of injury to persons in the Hellers' backyard, justifying their removal. The remainder of that tree did not meet the statutory tests for likely damage or injury, and habitat considerations supported retaining it. The front eucalypt had caused only trivial damage that was not likely to recur in the near future, but past branch falls, included bark at the leaders, and the possibility of failure onto adjacent power lines created a likely risk of serious injury to persons, justifying removal of the whole tree.

Jurisdiction
Australia
Judgment Date
11 February 2008
Procedural Posture
Trees (neighbours) Neighbour Application / Ex Tempore Judgment on Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006
Outcome
Application allowed in part; pruning of two branches of the Flooded Gum and removal of the front eucalypt ordered, with contribution by the applicants to the rear tree work.
Legal Topics
['trees Disputes Between Neighbours' 'risk of Injury From Trees' 'property Damage From Trees' 'tree Removal and Pruning Orders']
['environmental Law' 'property Law' 'neighbour Disputes'] ['trees Disputes Between Neighbours' 'risk of Injury From Trees' 'property Damage From Trees' 'tree Removal and Pruning Orders']

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Procedural Posture

Trees (neighbours) Neighbour Application / Ex Tempore Judgment on Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006

Legal Issues

  1. 1 ["Whether two branches of the Flooded Gum on the respondents' property were likely to be a risk of injury to persons on the applicants' property." "Whether the remainder of the Flooded Gum constituted a likely risk of damage to the applicants' property or injury to persons." "Whether the front eucalypt had caused or was likely in the near future to cause damage to the applicants' property." 'Whether the front eucalypt posed a likely risk of injury to persons because of possible branch or trunk failure onto power lines.' 'What orders and timeframe for compliance should be made.']

Ratio Decidendi

The two overhanging branches of the Flooded Gum had current or likely decay at their collars and were likely to pose a risk of injury to persons in the Hellers' backyard, justifying their removal. The remainder of that tree did not meet the statutory tests for likely damage or injury, and habitat considerations supported retaining it. The front eucalypt had caused only trivial damage that was not likely to recur in the near future, but past branch falls, included bark at the leaders, and the possibility of failure onto adjacent power lines created a likely risk of serious injury to persons, justifying removal of the whole tree.

Court Disposition

Application allowed in part; pruning of two branches of the Flooded Gum and removal of the front eucalypt ordered, with contribution by the applicants to the rear tree work.

Orders

  • ['Two branches of the Flooded Gum identified in photographs to be appended to the orders of the Court should be removed at the branch collars.' 'The entirety of the eucalypt to the front of the Dan property is to be removed to within 100 mm above ground level.' 'All pruning should be conducted in accordance with...