Huggett & anor v Burrowes [2015] NSWLEC 1057

Huggett & anor v Burrowes [2015] NSWLEC 1057

The repeated failure of three substantial green branches in calm conditions was consistent with sudden limb failure and showed a propensity for branch shedding in this particular tree. Because another branch failure could cause property damage or injury and the risks to frequently used residential backyards outweighed the tree's amenity value, s 10(2) was satisfied and removal, rather than selective pruning, was appropriate.

Jurisdiction
Australia
Judgment Date
18 March 2015
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Orders Seeking Removal of a Tree / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Application upheld; tree removal ordered.
Legal Topics
['potential Damage or Injury From Tree' 'tree Removal' 'sudden Limb Failure' 'costs Jurisdiction']
['trees Disputes Between Neighbours' 'land and Environment Court'] ['potential Damage or Injury From Tree' 'tree Removal' 'sudden Limb Failure' 'costs Jurisdiction']

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 S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Orders Seeking Removal of a Tree / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ["Whether the Lemon-scented Gum has caused, is causing, or could in the near future cause damage to the applicants' property or could cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether discretionary matters under s 12 of the Trees (Disputes Between Neighbours) Act 2006 favoured removal despite the tree's amenity value." 'Whether the applicants could obtain reimbursement of the application filing fee from a Commissioner.']

Ratio Decidendi

The repeated failure of three substantial green branches in calm conditions was consistent with sudden limb failure and showed a propensity for branch shedding in this particular tree. Because another branch failure could cause property damage or injury and the risks to frequently used residential backyards outweighed the tree's amenity value, s 10(2) was satisfied and removal, rather than selective pruning, was appropriate.

Court Disposition

Application upheld; tree removal ordered.

Orders

  • ['The application is upheld.' 'Within 60 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the tree to ground level and poison the stump.' 'The work is to be carried out in accordance with the WorkCover NSW Code of Practice...