Forner v Walsh [2009] NSWLEC 1360

Forner v Walsh [2009] NSWLEC 1360

Tree 1 had previously suffered branch failure causing property damage, and Trees 1, 2 and 3 contained dead wood or potential defects capable of causing damage or injury, satisfying s 10(2) sufficiently to permit orders for dead wood removal and further investigation for Trees 1 and 2. Tree 4 had been reduced to an approximately 8 metre stump, failure onto the applicant's property was unlikely, and concerns about termites did not constitute tree-caused damage or injury under the Act, so the application concerning Tree 4 was dismissed.

Jurisdiction
Australia
Judgment Date
14 October 2009
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / On Site Hearing; Ex Tempore Judgment With Interim Orders and Directions
Outcome
Interim orders made for dead wood removal from Trees 1, 2 and 3; application to remove or prune Tree 4 dismissed; further directions made for arborist testing and a second on-site hearing.
Legal Topics
['removal or Pruning of Trees' 'risk of Damage to Property' 'risk of Injury to Persons' 'dead Wood' 'expert Arborist Evidence']
['environment and Planning' 'trees Disputes Between Neighbours'] ['removal or Pruning of Trees' 'risk of Damage to Property' 'risk of Injury to Persons' 'dead Wood' 'expert Arborist Evidence']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / On Site Hearing; Ex Tempore Judgment With Interim Orders and Directions

Legal Issues

  1. 1 ["Whether four 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 were a risk of injury to persons under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Court should order removal or pruning of Trees 1, 2, 3 and 4.' 'Whether concerns about termites in Tree 4 could enliven jurisdiction under the Act.' 'Whether further arboricultural testing was required for potential structural defects in Trees 1 and 2.']

Ratio Decidendi

Tree 1 had previously suffered branch failure causing property damage, and Trees 1, 2 and 3 contained dead wood or potential defects capable of causing damage or injury, satisfying s 10(2) sufficiently to permit orders for dead wood removal and further investigation for Trees 1 and 2. Tree 4 had been reduced to an approximately 8 metre stump, failure onto the applicant's property was unlikely, and concerns about termites did not constitute tree-caused damage or injury under the Act, so the application concerning Tree 4 was dismissed.

Court Disposition

Interim orders made for dead wood removal from Trees 1, 2 and 3; application to remove or prune Tree 4 dismissed; further directions made for arborist testing and a second on-site hearing.

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, 2 and 3.' 'The dead wood removal work must comply with AS4373: 2007 Pruning of Amenity Trees and with the WorkCover Code of Practice for the Amenity Tree...