Thomas v Smith [2024] NSWLEC 1464

Thomas v Smith [2024] NSWLEC 1464

Only dead branches over the applicant’s property from Trees 1–4, and one live overextended branch from Tree 2, were found likely to cause damage or injury in the near future within the statutory meaning. The appropriate remedy is pruning by a suitably qualified arborist at the respondents’ cost, within specified standards. Other complaints (fence, concrete slab, general leaf litter, Tree 5) did not meet the statutory threshold for orders.

Parties
Applicant: David Thomas; First Respondent: Neil Smith; Second Respondent: Jenny Smith
Jurisdiction
Australia
Judgment Date
19 July 2024
Procedural Posture
Trees (disputes Between Neighbours) Act 2006 Application / Final Hearing and Orders
Outcome
Application granted in part, as set out in the orders.
Legal Topics
Trees (disputes Between Neighbours), Pruning and Maintenance of Trees, Risk of Property Damage or Injury
Environmental Law Property Law Trees (disputes Between Neighbours) Pruning and Maintenance of Trees Risk of Property Damage or Injury

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Parties

David Thomas

Applicant

Neil Smith

First Respondent

Jenny Smith

Second Respondent

Procedural Posture

Trees (disputes Between Neighbours) Act 2006 Application / Final Hearing and Orders

Legal Issues

  1. 1 Whether trees on the respondents' property are causing, or likely to cause, damage to the applicant's property or injury to persons within the meaning of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the applicant made reasonable efforts to reach agreement before commencing proceedings
  3. 3 What orders, if any, should be made to remedy or prevent such damage or injury

Ratio Decidendi

Only dead branches over the applicant’s property from Trees 1–4, and one live overextended branch from Tree 2, were found likely to cause damage or injury in the near future within the statutory meaning. The appropriate remedy is pruning by a suitably qualified arborist at the respondents’ cost, within specified standards. Other complaints (fence, concrete slab, general leaf litter, Tree 5) did not meet the statutory threshold for orders.

Court Disposition

Application granted in part, as set out in the orders.

Orders

  • Respondents to engage and pay for suitably qualified arborist (minimum AQF level 3) with all necessary insurances within 60 days to: (a) prune Trees 1–4 to remove all deadwood greater than 40 mm in diameter over applicant’s property; (b) prune Tree 2 to remove one branch over applicant’s property as shown in...
  • Works to be conducted in accordance with AS 4373-2007 'Pruning of amenity trees' and Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'.