Evans & Anor v Wylandra Nominees Pty Ltd [2010] NSWLEC 1331

Evans & Anor v Wylandra Nominees Pty Ltd [2010] NSWLEC 1331

The Court found that, on the balance of probability, expansion of roots had caused lifting of a concrete pathway, creating a tripping hazard and possible injury. Falling dead wood had damaged tiles and posed risk of injury. However, there was insufficient evidence to link internal cracking of the dwelling to the...

Source-derived case information.

Parties
Applicant: B Evans; Applicant: V Wells; Respondent: Wylandra Nominees Pty Ltd
Jurisdiction
Australia
Judgment Date
26 November 2010
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment
Outcome
Application to remove the tree dismissed; partial orders made for pruning and remediation.
Legal Topics
Trees (neighbours), Damage to Property, Injury to Persons, Tree Removal, Tree Pruning, Expert Witness Reports
Environmental Law Property Law Trees (neighbours) Damage to Property Injury to Persons Tree Removal Tree Pruning Expert Witness Reports

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Parties

B Evans

Applicant

V Wells

Applicant

Wylandra Nominees Pty Ltd

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment

Legal Issues

  1. 1 Whether the tree has caused or is likely to cause damage to property or injury to persons under the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether removal or pruning of the tree is appropriate under the circumstances
  3. 3 Quality and sufficiency of expert evidence provided

Ratio Decidendi

The Court found that, on the balance of probability, expansion of roots had caused lifting of a concrete pathway, creating a tripping hazard and possible injury. Falling dead wood had damaged tiles and posed risk of injury. However, there was insufficient evidence to link internal cracking of the dwelling to the tree. The evidence did not justify removal but justified specific remedial orders including pruning and repair measures.

Court Disposition

Application to remove the tree dismissed; partial orders made for pruning and remediation.

Orders

  • The application to remove the tree is dismissed.
  • The respondents must engage and pay for an AQF level 3 arborist to remove all dead wood down to 25mm in diameter from the parts of the tree that overhang the applicants' property to a distance of 3m inside the respondents property, measured from the common boundary.