Fell v Brasier [2021] NSWLEC 1666

Fell v Brasier [2021] NSWLEC 1666

The applicant made reasonable efforts to reach agreement, and both T1 and T2 were likely in the near future to cause damage to the applicant's roof from falling overextended branches and deadwood. However, the evidence did not establish that larger parts of either tree, including the stem of T1, were likely to fail in the near future. Having considered the s 12 matters, pruning and deadwood removal would reasonably mitigate the risk, while removal or the more extensive pruning sought was not justified.

Jurisdiction
Australia
Judgment Date
02 November 2021
Procedural Posture
Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application granted in part; pruning orders made for T1 and T2; removal not ordered.
Legal Topics
['pt 2 Application' 'damage to Property From Trees' 'likelihood of Future Damage or Injury' 'tree Removal or Pruning Orders' 'expert Arboricultural Evidence']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['pt 2 Application' 'damage to Property From Trees' 'likelihood of Future Damage or Injury' 'tree Removal or Pruning Orders' 'expert Arboricultural Evidence']

Case Brief

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Procedural Posture

Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ['Whether the application should be determined in relation to both Angophora costata trees identified as T1 and T2 despite initial uncertainty in the application.' 'Whether the applicant made reasonable efforts to reach agreement with the tree owner before seeking orders.' "Whether T1 or T2 had caused, were causing, or were likely in the near future to cause damage to the applicant's property or injury to any person." 'Whether the evidence justified removal of T1 or pruning of T1 and T2.' 'What orders should be made after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The applicant made reasonable efforts to reach agreement, and both T1 and T2 were likely in the near future to cause damage to the applicant's roof from falling overextended branches and deadwood. However, the evidence did not establish that larger parts of either tree, including the stem of T1, were likely to fail in the near future. Having considered the s 12 matters, pruning and deadwood removal would reasonably mitigate the risk, while removal or the more extensive pruning sought was not justified.

Court Disposition

Application granted in part; pruning orders made for T1 and T2; removal not ordered.

Orders

  • ['The application is granted to the extent of the following orders.' "Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the two Angophora costata identified as T1 and T2 in the report of...