Ashworth v Joyce [2007] NSWLEC 357

Ashworth v Joyce [2007] NSWLEC 357

The evidence did not establish that any of the trees (T1-T4) were likely to fail and cause damage to property in the near future. Only T1, due to its position and uncertainty in height, was found to pose a risk to persons on the public beach if it failed, justifying partial removal of its upper portion to eliminate risk. The remaining trees (T2-T4) posed no likely risk to persons or property.

Parties
Applicants: Peter & Meryl Ashworth; Respondents: John & Susan Joyce
Jurisdiction
Australia
Judgment Date
15 June 2007
Procedural Posture
Neighbour Application Under Trees (disputes Between Neighbours) Act 2006 / Final Determination, Ex Tempore Judgment
Outcome
Removal of upper portion of T1 ordered, other trees not to be removed.
Legal Topics
Trees on Adjoining Land, Risk of Injury, Dead Trees, Tree Removal Orders
Property Law Environmental Law Trees on Adjoining Land Risk of Injury Dead Trees Tree Removal Orders

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Parties

Peter & Meryl Ashworth

Applicants

John & Susan Joyce

Respondents

Procedural Posture

Neighbour Application Under Trees (disputes Between Neighbours) Act 2006 / Final Determination, Ex Tempore Judgment

Legal Issues

  1. 1 Whether dead trees on adjoining land pose a risk of injury to persons under section 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether failure of trees is likely to cause damage to property under section 10(2)(a) of the Act

Ratio Decidendi

The evidence did not establish that any of the trees (T1-T4) were likely to fail and cause damage to property in the near future. Only T1, due to its position and uncertainty in height, was found to pose a risk to persons on the public beach if it failed, justifying partial removal of its upper portion to eliminate risk. The remaining trees (T2-T4) posed no likely risk to persons or property.

Court Disposition

Removal of upper portion of T1 ordered, other trees not to be removed.

Orders

  • Mr and Mrs Joyce to remove the upper portion of T1 to a marked point on a photograph annexed to the orders, within twenty-eight (28) days from the date of the court orders.