Smith v Waddingham [2020] NSWLEC 1089

Smith v Waddingham [2020] NSWLEC 1089

T1 and/or T2 had caused roof damage, so s 10(2) of the Trees (Disputes between Neighbours) Act 2006 was engaged. However, because extensive pruning had already significantly reduced the likelihood of further damage and the risk of injury, the evidence did not justify removal of the trees. Targeted aerial inspection, pruning of deadwood and damaged branches, removal of the T2 branch stub, and periodic monitoring were sufficient to reduce the low residual risk while preserving the trees' amenity and environmental value. Because the trees pre-dated the applicant's development and the applicant had not taken measures to reduce root damage despite warning, the applicant was ordered to bear 65%...

Jurisdiction
Australia
Judgment Date
03 March 2020
Procedural Posture
Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Orders made for aerial inspection, pruning, monitoring and cost sharing; tree removal was not ordered.
Legal Topics
['dropping Branches' 'roof Damage' 'apprehension of Injury' 'tree Pruning and Inspection' 'cost Sharing for Tree Works']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['dropping Branches' 'roof Damage' 'apprehension of Injury' 'tree Pruning and Inspection' 'cost Sharing for Tree Works']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether T1 and T2 had caused, were causing, or were likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes between Neighbours) Act 2006." 'Whether T1 and T2 were likely to cause injury to any person, including pedestrians on the adjacent nature strip.' 'Whether removal of the two trees was justified or whether lesser orders for inspection, pruning and monitoring were appropriate.' 'How the costs of any ordered tree works should be allocated between the parties.']

Ratio Decidendi

T1 and/or T2 had caused roof damage, so s 10(2) of the Trees (Disputes between Neighbours) Act 2006 was engaged. However, because extensive pruning had already significantly reduced the likelihood of further damage and the risk of injury, the evidence did not justify removal of the trees. Targeted aerial inspection, pruning of deadwood and damaged branches, removal of the T2 branch stub, and periodic monitoring were sufficient to reduce the low residual risk while preserving the trees' amenity and environmental value. Because the trees pre-dated the applicant's development and the applicant had not taken measures to reduce root damage despite warning, the applicant was ordered to bear 65%...

Court Disposition

Orders made for aerial inspection, pruning, monitoring and cost sharing; tree removal was not ordered.

Orders

  • ['Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist who also holds an AQF level 5 arboriculture qualification, and all appropriate insurances, to conduct an aerial inspection of T1, which includes both the area of apparent swelling about 14 metres...