Forner v Walsh [2010] NSWLEC 1033

Forner v Walsh [2010] NSWLEC 1033

Tree 1 showed no structural condition indicating a near-future risk of damage to property or unacceptable risk of injury, and no damage had been caused, so no order could be made for Tree 1. The live branches of Tree 2 were normally and well attached and did not pose an unacceptable risk, but dead wood in Tree 2 could cause damage or injury, enlivening jurisdiction to order its removal.

Jurisdiction
Australia
Judgment Date
18 February 2010
Procedural Posture
Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After on Site Hearing
Outcome
Application dismissed in part; respondents ordered to remove specified dead wood from Tree 2.
Legal Topics
['damage to Property' 'risk of Injury to Persons' 'tree Removal' 'tree Pruning' 'dead Wood Removal']
['trees Disputes Between Neighbours' 'property Law'] ['damage to Property' 'risk of Injury to Persons' 'tree Removal' 'tree Pruning' 'dead Wood Removal']

Case Brief

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Procedural Posture

Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After on Site Hearing

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 or was a risk of injury to persons." "Whether Tree 2, including its live branches and dead wood, had caused, was causing, or was likely in the near future to cause damage to the applicant's property or was a risk of injury to persons." 'Whether further diagnostic testing with a Resistograph was warranted.']

Ratio Decidendi

Tree 1 showed no structural condition indicating a near-future risk of damage to property or unacceptable risk of injury, and no damage had been caused, so no order could be made for Tree 1. The live branches of Tree 2 were normally and well attached and did not pose an unacceptable risk, but dead wood in Tree 2 could cause damage or injury, enlivening jurisdiction to order its removal.

Court Disposition

Application dismissed in part; respondents ordered to remove specified dead wood from Tree 2.

Orders

  • ['The application to remove tree 1 is dismissed.' "The application to remove the live, lowest branch over the applicant's property is dismissed." 'The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood greater than or equal to 30mm in diameter from tree 2. The work is to be carried...