Girgis & anor v Phipps [2017] NSWLEC 1412

Girgis & anor v Phipps [2017] NSWLEC 1412

The tree was principally on the respondent's adjoining land and was therefore within the Act. The applicants did not provide sufficient evidence to substantiate past damage or the alleged injury to their son. However, dead branches in the respondent's otherwise healthy Ironbark were predictably likely to fall onto the applicants' recently constructed secondary dwelling or open space, and their size meant they may cause damage or potentially injury, satisfying s 10(2). Removal was not warranted because the tree was healthy, stable and of amenity, biodiversity and ecosystem value, and the risk could be addressed by periodic qualified arboricultural pruning.

Jurisdiction
Australia
Judgment Date
03 August 2017
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After on Site Hearing
Outcome
Application to remove the tree dismissed; pruning and ongoing maintenance orders made against the respondent.
Legal Topics
['damage to Property From Trees' 'risk of Injury From Trees' 'removal or Pruning of Tree' 'sufficiency of Evidence' 'neighbouring Land']
['trees Disputes Between Neighbours' 'property'] ['damage to Property From Trees' 'risk of Injury From Trees' 'removal or Pruning of Tree' 'sufficiency of Evidence' 'neighbouring Land']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After on Site Hearing

Legal Issues

  1. 1 ['Whether the Ironbark was a tree to which the Trees (Disputes Between Neighbours) Act 2006 applied.' "Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicants' property." 'Whether the tree was likely to cause injury to any person.' 'Whether removal of the tree was warranted or whether pruning orders were appropriate.']

Ratio Decidendi

The tree was principally on the respondent's adjoining land and was therefore within the Act. The applicants did not provide sufficient evidence to substantiate past damage or the alleged injury to their son. However, dead branches in the respondent's otherwise healthy Ironbark were predictably likely to fall onto the applicants' recently constructed secondary dwelling or open space, and their size meant they may cause damage or potentially injury, satisfying s 10(2). Removal was not warranted because the tree was healthy, stable and of amenity, biodiversity and ecosystem value, and the risk could be addressed by periodic qualified arboricultural pruning.

Court Disposition

Application to remove the tree dismissed; pruning and ongoing maintenance orders made against the respondent.

Orders

  • ['The application to remove the tree is dismissed.' "Within 90 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification of AQF level 3 in Arboriculture, and with appropriate insurance cover, to remove all dead wood down to 30mm in diameter at its base from...