Gallagher v Aslett [2009] NSWLEC 1038

Gallagher v Aslett [2009] NSWLEC 1038

The Court was not satisfied that gutter leaf fall, past damage, or risk of personal injury justified orders, but was satisfied that the ivy infestation significantly increased wind sail loading and created a likely risk of branch failure causing damage to Mr Gallagher's property within the near future. Because that risk arose from the proximity of Mr Gallagher's later extension to the pre-existing tree, the appropriate order was for Mr Gallagher to remove and periodically remove sections of ivy runners, with access provided by Ms Aslett, rather than ordering removal of the tree or imposing the work on Ms Aslett.

Jurisdiction
Australia
Judgment Date
20 January 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Orders made pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 for ivy removal and ongoing maintenance access; no order made for tree removal or on the gutter-leaf concern.
Legal Topics
['ivy Infestation of Tree' 'risk of Property Damage From Tree' 'pruning or Removal of Tree' 'responsibility for Tree Works Near Later Development']
['trees Disputes' 'neighbour Disputes' 'property Law'] ['ivy Infestation of Tree' 'risk of Property Damage From Tree' 'pruning or Removal of Tree' 'responsibility for Tree Works Near Later Development']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the coral tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property." 'Whether the coral tree is a likely risk of injury to any person.' 'Whether orders should be made for removal, pruning, or other work on the tree because of ivy infestation increasing wind loading.' 'Who should undertake or bear responsibility for the work required on the tree.']

Ratio Decidendi

The Court was not satisfied that gutter leaf fall, past damage, or risk of personal injury justified orders, but was satisfied that the ivy infestation significantly increased wind sail loading and created a likely risk of branch failure causing damage to Mr Gallagher's property within the near future. Because that risk arose from the proximity of Mr Gallagher's later extension to the pre-existing tree, the appropriate order was for Mr Gallagher to remove and periodically remove sections of ivy runners, with access provided by Ms Aslett, rather than ordering removal of the tree or imposing the work on Ms Aslett.

Court Disposition

Orders made pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 for ivy removal and ongoing maintenance access; no order made for tree removal or on the gutter-leaf concern.

Orders

  • ['All the ivy located between 500 mm and 1 m above ground level growing on the coral tree located at the rear of the dwelling located on 18 Anglers Drive, Bateau Bay is to be removed.' 'The first such removal is to take place by 31 March 2009.' 'This removal is to be repeated at not more than 12 monthly intervals...