Prior v Michael; Pettitt v Michael [2016] NSWLEC 1495

Prior v Michael; Pettitt v Michael [2016] NSWLEC 1495

The dead mature Pinus radiata had caused damage to Mr Pettitt's property and, because of its advanced decline and overhanging large branches, was likely in the near future to cause damage to both applicants' property and could foreseeably cause injury to persons on their properties. The jurisdictional tests in s 10(2) were therefore satisfied, and removal to a safe height was ordered.

Jurisdiction
Australia
Judgment Date
26 October 2016
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Orders
Outcome
Application granted; tree removal ordered
Legal Topics
['damage to Property' 'potential Injury' 'dead Tree' 'neighbouring Land']
['trees Disputes' 'property' 'land and Environment'] ['damage to Property' 'potential Injury' 'dead Tree' 'neighbouring Land']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Orders

Legal Issues

  1. 1 ["Whether the dead Pinus radiata has caused, is causing, or is likely in the near future to cause damage to the applicants' property." 'Whether the dead Pinus radiata is likely to cause injury to any person.' 'Whether orders should be made for removal of the dead tree.' 'Whether Mr Pettitt should receive compensation for replacement of an aviary damaged by a branch from the tree.']

Ratio Decidendi

The dead mature Pinus radiata had caused damage to Mr Pettitt's property and, because of its advanced decline and overhanging large branches, was likely in the near future to cause damage to both applicants' property and could foreseeably cause injury to persons on their properties. The jurisdictional tests in s 10(2) were therefore satisfied, and removal to a safe height was ordered.

Court Disposition

Application granted; tree removal ordered

Orders

  • ["Within 30 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification of AQF level 3 in Arboriculture, and with appropriate insurance cover, to remove the dead Pinus radiata at the rear of the respondent's property to a height of no more than 2 m above...