Forner v Walsh (N0 2) [2010] NSWLEC 1002

Forner v Walsh (N0 2) [2010] NSWLEC 1002

The Court was satisfied that its jurisdiction under s 10(2) was enlivened for Tree 2 because remaining dead wood may cause property damage if it fails, and for Tree 1 because testing identified a potential risk of injury from a cavity in a large overhanging branch and remaining dead wood. The Resistograph testing otherwise showed low risk of failure for the cavities in Tree 2 and other defects in Tree 1, so no further testing or reduction of the disputed branch stub was justified, but removal of dead wood and the identified Tree 1 branch was warranted.

Jurisdiction
Australia
Judgment Date
04 January 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / On Site Re Hearing and Judgment Following Earlier Orders and Directions
Outcome
Orders made requiring arboricultural works on Trees 1 and 2.
Legal Topics
['neighbouring Trees' 'risk of Property Damage' 'risk of Injury to Persons' 'arborist Inspection and Pruning Orders' 'trees (disputes Between Neighbours) Act 2006']
['trees Disputes' 'property Law' 'land and Environment Court Proceedings'] ['neighbouring Trees' 'risk of Property Damage' 'risk of Injury to Persons' 'arborist Inspection and Pruning Orders' 'trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / On Site Re Hearing and Judgment Following Earlier Orders and Directions

Legal Issues

  1. 1 ["Whether trees on the respondents' property had caused, were causing, or were likely in the near future to cause damage to the applicant's property or posed a risk of injury to persons under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether further pruning or removal of branches from Tree 1 and Tree 2 was justified in light of arborist inspections and Resistograph testing.' "Whether remaining dead wood overhanging the applicant's property should be removed."]

Ratio Decidendi

The Court was satisfied that its jurisdiction under s 10(2) was enlivened for Tree 2 because remaining dead wood may cause property damage if it fails, and for Tree 1 because testing identified a potential risk of injury from a cavity in a large overhanging branch and remaining dead wood. The Resistograph testing otherwise showed low risk of failure for the cavities in Tree 2 and other defects in Tree 1, so no further testing or reduction of the disputed branch stub was justified, but removal of dead wood and the identified Tree 1 branch was warranted.

Court Disposition

Orders made requiring arboricultural works on Trees 1 and 2.

Orders

  • ['The respondents are to engage and pay for an arborist (minimum AQF level 3 in Arboriculture) to remove all dead wood down to a diameter of 30 mm from Trees 1 and 2. This work must comply with AS4373: 2007 Pruning of Amenity Trees and with the WorkCover Code of Practice for the Amenity Tree Industry. The arborist...