Burbridge v Gounakis [2019] NSWLEC 1202

Burbridge v Gounakis [2019] NSWLEC 1202

Branches had fallen from the tree since the 2016 decision and the exposed upper branches were likely to fail in strong winds and were large enough to cause damage or injury, so orders could be made. Pruning would require removal of the upper and damaged branches and amount to topping contrary to best pruning practices, leaving no suitable alternative to removal. Compensation was refused because the concrete displacement was minor, the concrete was old and otherwise cracked, the respondents had not been told of the damage before the application and had no opportunity to prevent it, and the alleged gardening works were not shown to have been prevented by the tree.

Jurisdiction
Australia
Judgment Date
03 May 2019
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
The application for compensation is refused and the application for tree removal is granted.
Legal Topics
['falling Limbs' 'risk of Damage and Injury' 'change in Circumstance Since Previous Decision' 'root Damage' 'tree Removal' 'compensation']
['trees Disputes Between Neighbours' 'property'] ['falling Limbs' 'risk of Damage and Injury' 'change in Circumstance Since Previous Decision' 'root Damage' 'tree Removal' 'compensation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Have circumstances changed since the Court's earlier decision?" "Are branches likely to fall and damage the applicant's property in the near future, or injure somebody?" 'If so, and after considering matters at s 12 of the Trees Act, should orders be made for removing the tree, or for other works?' "Have roots of the tree damaged Mrs Burbridge's property?" 'If so, should she be compensated for any damage?' 'Should Mrs Burbridge be compensated for restoring her garden beneath the tree?']

Ratio Decidendi

Branches had fallen from the tree since the 2016 decision and the exposed upper branches were likely to fail in strong winds and were large enough to cause damage or injury, so orders could be made. Pruning would require removal of the upper and damaged branches and amount to topping contrary to best pruning practices, leaving no suitable alternative to removal. Compensation was refused because the concrete displacement was minor, the concrete was old and otherwise cracked, the respondents had not been told of the damage before the application and had no opportunity to prevent it, and the alleged gardening works were not shown to have been prevented by the tree.

Court Disposition

The application for compensation is refused and the application for tree removal is granted.

Orders

  • ['The application for compensation is refused.' 'The application for tree removal is granted.' 'Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to no more than...