McGroder & Anor v Nelson & Anor [2011] NSWLEC 1300

McGroder & Anor v Nelson & Anor [2011] NSWLEC 1300

Dead fronds from palm trees T1 and T2 had fallen onto the applicants' property and were sufficiently heavy to be likely in the near future to cause property damage and injury to persons, so the requirements of s 10(2) were met and pruning orders could be made. Fruit stalks were too light to justify orders, and the Liquidamber was healthy with no proven risk of injury or property damage; mere deposition of leaves and small debris did not enliven jurisdiction.

Jurisdiction
Australia
Judgment Date
22 September 2011
Procedural Posture
Class 2 Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Application to prune liquidambar refused; application to prune fronds from two palm trees upheld; orders made for pruning.
Legal Topics
['damage to Property' 'risk of Injury to Persons' 'pruning of Trees' 'falling Palm Fronds' 'deposition of Leaves, Fruit and Debris']
['trees Disputes' 'property Law' 'environmental Law'] ['damage to Property' 'risk of Injury to Persons' 'pruning of Trees' 'falling Palm Fronds' 'deposition of Leaves, Fruit and Debris']

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Procedural Posture

Class 2 Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ["Whether dead fronds and fruit stalks from two Canary Island Date palms were likely in the near future to cause damage to the applicants' property or injury to persons." "Whether a branch of the respondents' Chinese Liquidamber had caused, was causing, or was likely in the near future to cause damage to the applicants' property or injury to persons." 'Whether the Court should make orders under the Trees (Disputes Between Neighbours) Act 2006 for pruning or removal of the trees.']

Ratio Decidendi

Dead fronds from palm trees T1 and T2 had fallen onto the applicants' property and were sufficiently heavy to be likely in the near future to cause property damage and injury to persons, so the requirements of s 10(2) were met and pruning orders could be made. Fruit stalks were too light to justify orders, and the Liquidamber was healthy with no proven risk of injury or property damage; mere deposition of leaves and small debris did not enliven jurisdiction.

Court Disposition

Application to prune liquidambar refused; application to prune fronds from two palm trees upheld; orders made for pruning.

Orders

  • ['The application to prune a branch from the tree 3 Liquidamber is refused.' 'The respondents are to engage and pay for an AQF level 3 arborist to prune the dead fronds from palm trees T1 and T2. Only dead fronds are required to be removed and the work is to be in accordance with Australian Standard AS4373-2007...