Daley & anor v Murray [2015] NSWLEC 1489

Daley & anor v Murray [2015] NSWLEC 1489

The Court upheld the application because the fallen tree had caused damage to the applicants' property, satisfying the Trees Act jurisdictional test, and s 4(4) permitted orders despite the tree having been removed. The two remaining trees had restricted and damaged root systems, disturbed soil, damaged buttresses, exposure to wind and increased wind loading after the loss of the third tree, making them likely to fail in the near future and likely to cause property damage or injury. Pruning could not sufficiently reduce the risk, so removal was required, and the agreed consent orders were appropriate.

Jurisdiction
Australia
Judgment Date
25 November 2015
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Consent Orders
Outcome
The application is upheld by consent.
Legal Topics
['damage by a Fallen Tree' 'risk of Damage and Injury' 'tree Removal Orders' 'consent Orders' 'common Boundary Fence Repairs']
['trees Disputes Between Neighbours' 'property Law'] ['damage by a Fallen Tree' 'risk of Damage and Injury' 'tree Removal Orders' 'consent Orders' 'common Boundary Fence Repairs']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Consent Orders

Legal Issues

  1. 1 ['Whether the Court had jurisdiction under the Trees (Disputes Between Neighbours) Act 2006 in relation to the fallen tree and the two remaining trees.' "Whether the two remaining Spotted Gums were likely to fail and cause damage to the applicants' property or injury to people." 'Whether removal of the two remaining trees was required and whether the proposed consent orders were appropriate.' "Whether the respondent should reimburse part of the applicants' costs for repairing the damaged common boundary fence."]

Ratio Decidendi

The Court upheld the application because the fallen tree had caused damage to the applicants' property, satisfying the Trees Act jurisdictional test, and s 4(4) permitted orders despite the tree having been removed. The two remaining trees had restricted and damaged root systems, disturbed soil, damaged buttresses, exposure to wind and increased wind loading after the loss of the third tree, making them likely to fail in the near future and likely to cause property damage or injury. Pruning could not sufficiently reduce the risk, so removal was required, and the agreed consent orders were appropriate.

Court Disposition

The application is upheld by consent.

Orders

  • ['Within seven days of the date of these orders, the Daleys are to pay Ms Murray $1,545.50, being half the amount quoted for removal of the two remaining Trees.' "Within 60 days of the date of these orders Ms Murray is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate...