Ashton v Constantinidis [2008] NSWLEC 25

Ashton v Constantinidis [2008] NSWLEC 25

The Court found no evidence of decay in the rest of the tree and considered it sound and in no immediate danger of falling over, so removal of the tree was not warranted. However, a large dead leader branch and smaller deadwood were present, activating clause 9(2)(d) of the Trees (Disputes between Neighbours) Act 2006 and justifying an order that the respondent pay for qualified arboricultural removal of that deadwood.

Jurisdiction
Australia
Judgment Date
15 January 2008
Procedural Posture
Neighbour Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Removal and Pruning of a Tree, Retaining Wall and Alleged Property Damage / Ex Tempore Judgment After Hearing on 15 January 2008
Outcome
Application upheld in part.
Legal Topics
['removal and Pruning of Tree' 'deadwood in Tree Canopy' 'tree Roots and Property Damage' 'retaining Wall' 'boundary Dispute']
['trees Disputes Between Neighbours' 'land and Environment'] ['removal and Pruning of Tree' 'deadwood in Tree Canopy' 'tree Roots and Property Damage' 'retaining Wall' 'boundary Dispute']

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Procedural Posture

Neighbour Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Removal and Pruning of a Tree, Retaining Wall and Alleged Property Damage / Ex Tempore Judgment After Hearing on 15 January 2008

Legal Issues

  1. 1 ['Whether removal of the Eucalyptus Scoparia tree was warranted.' 'Whether dead branches and deadwood in the tree should be removed.' "Whether tree roots had damaged or would damage retaining structures or sewer pipes on the applicants' property." 'Whether the disputed location of the boundary affected the decision regarding the tree.']

Ratio Decidendi

The Court found no evidence of decay in the rest of the tree and considered it sound and in no immediate danger of falling over, so removal of the tree was not warranted. However, a large dead leader branch and smaller deadwood were present, activating clause 9(2)(d) of the Trees (Disputes between Neighbours) Act 2006 and justifying an order that the respondent pay for qualified arboricultural removal of that deadwood.

Court Disposition

Application upheld in part.

Orders

  • ['The application is upheld in part.' 'At No. 18 Spring street, Pagewood the large dead leader branch including smaller deadwood down to 30 mm diameter in the entire canopy of the Eucalyptus Scoparia tree shall be removed by an arborist of AQF level 3 qualifications and with appropriate insurance. The work is to be...