Day v Merrylees and anor [2009] NSWLEC 1110

Day v Merrylees and anor [2009] NSWLEC 1110

The Court had jurisdiction because uncontradicted evidence showed past damage to the applicant's property from falling dead branches. However, its inspection showed a well balanced branch structure, no significant risk associated with branch structures, and no likelihood of major branch or total tree failure in the foreseeable future, so there was no factual basis to order removal of the tree. The remaining deadwood elements were likely to cause property damage or risk injury and should be removed. Because the applicant's development had not appropriately accounted for the existing tree and its potential to drop deadwood, the applicant should contribute 40% of the cost of deadwood removal.

Jurisdiction
Australia
Judgment Date
19 March 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Removal of a Tree / On Site Hearing; Ex Tempore Judgment
Outcome
Tree removal not ordered; deadwood removal ordered with the applicant to contribute to costs.
Legal Topics
['tree Removal' 'deadwood Removal' 'risk of Damage to Property' 'risk of Injury to Persons' 'cost Apportionment']
['trees (neighbours)' 'land and Environment Court'] ['tree Removal' 'deadwood Removal' 'risk of Damage to Property' 'risk of Injury to Persons' 'cost Apportionment']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Removal of a Tree / On Site Hearing; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Blackbutt tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether removal of the tree should be ordered having regard to discretionary matters under s 12 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicant should contribute to the cost of works to the tree because of the siting and design of development on his property near an existing tree.']

Ratio Decidendi

The Court had jurisdiction because uncontradicted evidence showed past damage to the applicant's property from falling dead branches. However, its inspection showed a well balanced branch structure, no significant risk associated with branch structures, and no likelihood of major branch or total tree failure in the foreseeable future, so there was no factual basis to order removal of the tree. The remaining deadwood elements were likely to cause property damage or risk injury and should be removed. Because the applicant's development had not appropriately accounted for the existing tree and its potential to drop deadwood, the applicant should contribute 40% of the cost of deadwood removal.

Court Disposition

Tree removal not ordered; deadwood removal ordered with the applicant to contribute to costs.

Orders

  • ['All remaining deadwood elements in the tree with a diameter of 25 mm or greater at the point of attachment are to be removed.' 'The removal of the deadwood is to be undertaken within 90 days of the date of these orders.' 'The deadwood is to be removed by an AQF level 3 aborist with appropriate insurances.' 'The...