Hosainy v Rashid [2015] NSWLEC 1223

Hosainy v Rashid [2015] NSWLEC 1223

The Court was not satisfied that Tree 1 had caused, was causing, or was likely in the near future to cause damage to the applicant's property because the alleged railing damage was not proved and future damage was only a theoretical possibility. However, the presence of deadwood, a detached hanging branch, and torn...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 June 2015
Procedural Posture
Class 2 Application Under Section 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Tree Dispute Between Neighbours / Final Hearing and Orders
Outcome
The application is upheld; the application to remove Tree 1 is dismissed; pruning and related access, notice, debris removal, and recurring maintenance orders are made.
Legal Topics
['tree Pruning' 'risk of Injury From Overhanging Branches' 'property Damage' 'compensation' 'tree Debris and Leaf Litter']
['trees Disputes' 'neighbour Disputes' 'land and Environment Court Proceedings'] ['tree Pruning' 'risk of Injury From Overhanging Branches' 'property Damage' 'compensation' 'tree Debris and Leaf Litter']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Class 2 Application Under Section 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Tree Dispute Between Neighbours / Final Hearing and Orders

Legal Issues

  1. 1 ["Whether Tree 1 had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether Tree 1 was likely to cause injury to a person.' 'Whether compensation or orders for damage to property should be made.' 'Whether orders should be made because of debris and leaf litter from the tree.' 'What pruning or other orders were appropriate to mitigate any established risk.']

Ratio Decidendi

The Court was not satisfied that Tree 1 had caused, was causing, or was likely in the near future to cause damage to the applicant's property because the alleged railing damage was not proved and future damage was only a theoretical possibility. However, the presence of deadwood, a detached hanging branch, and torn branch stubs overhanging an area used by persons meant the tree was likely to cause injury if larger material fell. The appropriate response was targeted pruning, not removal of the tree, and no orders were warranted for debris or compensation.

Court Disposition

The application is upheld; the application to remove Tree 1 is dismissed; pruning and related access, notice, debris removal, and recurring maintenance orders are made.

Orders

  • ['The application is upheld.' 'The application to remove Tree 1 is dismissed.' "Within 35 days of the date of this order, the respondent is to engage and pay for an AQF Level 3 Arborist with appropriate insurances to prune Tree 1. All deadwood with a diameter of greater than 20mm at the point of attachment (branch...