Woo v Atkinson [2010] NSWLEC 1278

Woo v Atkinson [2010] NSWLEC 1278

The tree has caused minor damage to the applicant's property by the dropping of branches, meeting the test in s 10(2)(a) of the Act; however, the extent of damage and the broader amenity value of the tree do not justify removal. Appropriate remedy is limited to removal of deadwood overhanging the applicant's property to reduce future risk.

Jurisdiction
Australia
Judgment Date
08 October 2010
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Determination (ex Tempore Judgment)
Outcome
Application upheld in part
Legal Topics
['tree Disputes' 'neighbour Disputes' 'damage to Property' 'injunctions and Remedies']
['environmental Law' 'property Law'] ['tree Disputes' 'neighbour Disputes' 'damage to Property' 'injunctions and Remedies']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Determination (ex Tempore Judgment)

Legal Issues

  1. 1 ["Whether the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property" 'Whether the tree is likely to cause injury to any person' 'Appropriate orders regarding removal or pruning of the tree']

Ratio Decidendi

The tree has caused minor damage to the applicant's property by the dropping of branches, meeting the test in s 10(2)(a) of the Act; however, the extent of damage and the broader amenity value of the tree do not justify removal. Appropriate remedy is limited to removal of deadwood overhanging the applicant's property to reduce future risk.

Court Disposition

Application upheld in part

Orders

  • ["Respondent to engage and pay for AQF level 3 arborist to remove deadwood down to 20mm diameter from the portion of the tree overhanging applicant's property to a distance of 2m within respondent's property." 'Work to comply with AS4373:2007 Pruning of Amenity Trees and WorkCover NSW Code of Practice for the...