Kilic v Brown [2010] NSWLEC 1036

Kilic v Brown [2010] NSWLEC 1036

The Privet did not satisfy any s10(2) threshold because it had not caused, was not causing, and was unlikely in the near future to cause damage to property or risk injury, and its noxious weed status did not independently confer jurisdiction. The Oak and Jacaranda contained dead wood overhanging the applicants' property that could potentially cause injury, enlivening jurisdiction under s10(2), but the appropriate relief was limited pruning of dead wood and the Oak branch touching the gutter. Because the trees pre-existed the applicants' purchase and construction and were obvious, the applicants were required to contribute 20% of the pruning costs.

Jurisdiction
Australia
Judgment Date
22 February 2010
Procedural Posture
Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Pruning/removal of Neighbouring Trees / Ex Tempore Judgment and Orders After on Site Hearing
Outcome
Application dismissed as to removal of the Privet; application to prune the Jacaranda and Oak upheld in part.
Legal Topics
['damage to Property' 'risk of Injury to Persons' 'tree Pruning and Removal' 'dead Wood' 'noxious Weed Status']
['trees (neighbours)' 'land and Environment' 'noxious Weeds'] ['damage to Property' 'risk of Injury to Persons' 'tree Pruning and Removal' 'dead Wood' 'noxious Weed Status']

Case Brief

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Procedural Posture

Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Pruning/removal of Neighbouring Trees / Ex Tempore Judgment and Orders After on Site Hearing

Legal Issues

  1. 1 ["Whether the Privet, Oak and Jacaranda had caused, were causing, or were likely in the near future to cause damage to the applicants' property or were a risk of injury to persons under s10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the Privet's classification as a noxious weed justified an order for its removal." "Whether any damage from sooty mould was within the Court's jurisdiction under the Trees (Disputes Between Neighbours) Act 2006." 'What pruning orders, if any, should be made for the Oak and Jacaranda and who should bear the cost.']

Ratio Decidendi

The Privet did not satisfy any s10(2) threshold because it had not caused, was not causing, and was unlikely in the near future to cause damage to property or risk injury, and its noxious weed status did not independently confer jurisdiction. The Oak and Jacaranda contained dead wood overhanging the applicants' property that could potentially cause injury, enlivening jurisdiction under s10(2), but the appropriate relief was limited pruning of dead wood and the Oak branch touching the gutter. Because the trees pre-existed the applicants' purchase and construction and were obvious, the applicants were required to contribute 20% of the pruning costs.

Court Disposition

Application dismissed as to removal of the Privet; application to prune the Jacaranda and Oak upheld in part.

Orders

  • ['The application to remove the Privet is dismissed.' 'The application to prune the Jacaranda and Oak is upheld in part.' "The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood > 30mm in diameter, and hangers, from the section of the Oak tree that overhangs the applicants'...