Walmsley v Grant [2009] NSWLEC 1330

Walmsley v Grant [2009] NSWLEC 1330

The tree had not caused and was not causing damage to Mr Walmsley's property, and the evidence did not establish that live branch failure, root damage, or falling dead branches were likely in the near future to cause property damage. However, because minor deadwood remained in the crown over a small backyard containing a pool, spa and pavilion likely to be used by people, falling dead branches were likely to pose a risk of injury. The appropriate response was retention of the healthy tree with pruning and removal of deadwood, not removal of the tree.

Jurisdiction
Australia
Judgment Date
16 September 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing
Outcome
Application upheld in part.
Legal Topics
['tree Removal' 'damage to Property' 'risk of Injury to Persons' 'pruning of Deadwood']
['trees (neighbours)' 'property' 'land and Environment'] ['tree Removal' 'damage to Property' 'risk of Injury to Persons' 'pruning of Deadwood']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Lemon Scented Gum caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the Lemon Scented Gum was likely to cause injury to any person.' 'Whether the Court should order removal of the tree or pruning of dead branches.']

Ratio Decidendi

The tree had not caused and was not causing damage to Mr Walmsley's property, and the evidence did not establish that live branch failure, root damage, or falling dead branches were likely in the near future to cause property damage. However, because minor deadwood remained in the crown over a small backyard containing a pool, spa and pavilion likely to be used by people, falling dead branches were likely to pose a risk of injury. The appropriate response was retention of the healthy tree with pruning and removal of deadwood, not removal of the tree.

Court Disposition

Application upheld in part.

Orders

  • ['These orders apply to 85 Victor Avenue, Picnic Point;' "All deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree by 16 December 2009, at Mr Grant's cost, by an AQF Level 3 arborist with suitable insurances and in accordance with the Australian Standard AS 4373-2007...