Gant v Abreu and anor [2010] NSWLEC 1214

Gant v Abreu and anor [2010] NSWLEC 1214

There was no evidence that the remaining tree had caused damage to the applicants' property or was likely to cause damage in the near future, and the arborist's opinion about extensive decay and the need to remove live branches was not accepted. However, because dead wood was present in overhanging portions and a large dead limb in the upper canopy could cause injury when it failed, the injury limb of s 10(2) was satisfied. The appropriate order was therefore limited to removal of dead wood greater than 40 mm in diameter, not removal of live branches or the tree.

Jurisdiction
Australia
Judgment Date
06 August 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 by Owners Against Owners of Trees Growing on an Adjoining Property / Ex Tempore Judgment and Final Orders
Outcome
Application upheld in part.
Legal Topics
['damage to Property' 'risk of Injury to Persons' 'pruning of Dead Wood' 'neighbouring Trees' 'threatened Ecological Community']
['trees Disputes' 'property Law' 'environmental Law'] ['damage to Property' 'risk of Injury to Persons' 'pruning of Dead Wood' 'neighbouring Trees' 'threatened Ecological Community']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 by Owners Against Owners of Trees Growing on an Adjoining Property / Ex Tempore Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the tree has caused, is causing, or is likely in the near future to cause damage to the applicants' property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree is likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether orders should be made for removal or pruning of live branches or only for removal of dead wood.']

Ratio Decidendi

There was no evidence that the remaining tree had caused damage to the applicants' property or was likely to cause damage in the near future, and the arborist's opinion about extensive decay and the need to remove live branches was not accepted. However, because dead wood was present in overhanging portions and a large dead limb in the upper canopy could cause injury when it failed, the injury limb of s 10(2) was satisfied. The appropriate order was therefore limited to removal of dead wood greater than 40 mm in diameter, not removal of live branches or the tree.

Court Disposition

Application upheld in part.

Orders

  • ['The application to prune overhanging branches from Tree 2 is upheld in part.' 'The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood > 40 mm in diameter from the tree.' 'This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW...