Burbridge v Gounakis & anor [2016] NSWLEC 1275

Burbridge v Gounakis & anor [2016] NSWLEC 1275

The branch failures had probably caused minor damage to the applicant's property and created a reasonably foreseeable risk of further failure from weakly attached epicormic shoots or damaged and split branch sections susceptible to decay, so the jurisdictional tests in s 10(2) were met. However, because the tree appeared healthy, contributed to amenity when in leaf, and pruning in accordance with the Australian Standard should have little impact on its health, removal was not warranted and pruning was the appropriate order. As there was no clear evidence that the applicant contributed to the problem, the respondents were required to pay 100% of the pruning costs.

Jurisdiction
Australia
Judgment Date
01 July 2016
Procedural Posture
Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application to remove the tree was dismissed and pruning was ordered.
Legal Topics
['damage to Property From Tree Branches' 'potential Injury From Tree Branches' 'tree Removal' 'tree Pruning' 'costs of Pruning']
['trees Disputes Between Neighbours' 'land and Environment'] ['damage to Property From Tree Branches' 'potential Injury From Tree Branches' 'tree Removal' 'tree Pruning' 'costs of Pruning']

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Procedural Posture

Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the Liquidambar has caused, is causing, or is likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Liquidambar is likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether removal of the tree or pruning should be ordered.' 'Who should pay the costs of pruning.']

Ratio Decidendi

The branch failures had probably caused minor damage to the applicant's property and created a reasonably foreseeable risk of further failure from weakly attached epicormic shoots or damaged and split branch sections susceptible to decay, so the jurisdictional tests in s 10(2) were met. However, because the tree appeared healthy, contributed to amenity when in leaf, and pruning in accordance with the Australian Standard should have little impact on its health, removal was not warranted and pruning was the appropriate order. As there was no clear evidence that the applicant contributed to the problem, the respondents were required to pay 100% of the pruning costs.

Court Disposition

The application to remove the tree was dismissed and pruning was ordered.

Orders

  • ['The application to remove the tree is dismissed.' 'The respondents are to engage and pay for an arborist with minimum AQF level 3 qualifications in arboriculture, and with appropriate insurance cover, to remove the branches identified in the photographs attached to this judgment.' 'The works in (2) are to be...