Burnham v Ross [2021] NSWLEC 1339

Burnham v Ross [2021] NSWLEC 1339

The tree has caused damage to the applicant's property, further damage is likely, and no suitable alternative to removal exists. The applicant made reasonable efforts to resolve the dispute. Removal should proceed as the least intervention necessary to prevent further damage. The applicant is not to contribute to the cost and respondent is not required to remove existing tree roots beyond treating the stump.

Jurisdiction
Australia
Judgment Date
02 June 2021
Procedural Posture
Trees (disputes Between Neighbours) Act 2006 Pt 2 Application / Principal Judgment
Outcome
Application granted to the extent of the orders made.
Legal Topics
['tree Disputes Between Neighbours' 'damage to Property by Trees']
['environmental Law' 'property Law'] ['tree Disputes Between Neighbours' 'damage to Property by Trees']

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Procedural Posture

Trees (disputes Between Neighbours) Act 2006 Pt 2 Application / Principal Judgment

Legal Issues

  1. 1 ["Whether the tree on respondent's property has caused or is likely to cause damage to the applicant's property" 'Whether removal of the tree is required under the Trees (Disputes Between Neighbours) Act 2006' 'Whether the applicant has made reasonable effort to resolve the dispute' 'Appropriate scope and conditions for removal orders']

Ratio Decidendi

The tree has caused damage to the applicant's property, further damage is likely, and no suitable alternative to removal exists. The applicant made reasonable efforts to resolve the dispute. Removal should proceed as the least intervention necessary to prevent further damage. The applicant is not to contribute to the cost and respondent is not required to remove existing tree roots beyond treating the stump.

Court Disposition

Application granted to the extent of the orders made.

Orders

  • ['Within 90 days, respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to remove the tree to the height of the top of the adjacent fence (or lower) and treat stump to prevent regrowth.' "The works are to be done in accordance with the 2016 Safe Work...