Manton v The Owners Strata Plan No. 40735 [2015] NSWLEC 1496

Manton v The Owners Strata Plan No. 40735 [2015] NSWLEC 1496

The evidence did not establish that branches, insects, leaves, debris, or whole-tree failure had caused or were likely in the near future to cause property damage, and those matters did not justify removal of the Sydney Blue Gum. However, because deadwood was present in the canopy over an area used by the applicant and larger deadwood was likely to cause injury if it fell and struck a person, the statutory threshold in section 10(2) was met. The appropriate order was pruning of deadwood, not removal of the tree.

Jurisdiction
Australia
Judgment Date
20 November 2015
Procedural Posture
Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Eucalyptus Saligna (sydney Blue Gum) Tree / Final Decision and Orders After Hearing
Outcome
The application is upheld; the application to remove the Sydney Blue Gum is dismissed; pruning and ongoing deadwood management orders are made.
Legal Topics
['tree Pruning' 'property Damage From Trees' 'risk of Injury From Trees' 'deadwood' 'leaf Litter and Debris' 'insects Associated With Trees' 'costs in Tree Dispute Proceedings']
['trees Disputes' 'land and Environment'] ['tree Pruning' 'property Damage From Trees' 'risk of Injury From Trees' 'deadwood' 'leaf Litter and Debris' 'insects Associated With Trees' 'costs in Tree Dispute Proceedings']

Case Brief

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Procedural Posture

Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Eucalyptus Saligna (sydney Blue Gum) Tree / Final Decision and Orders After Hearing

Legal Issues

  1. 1 ["Whether the Sydney Blue Gum had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the Sydney Blue Gum was likely to cause injury to a person.' "Whether insects associated with the tree could engage the Court's jurisdiction." 'Whether leaf litter and debris justified removal of or intervention with the tree.' 'Whether orders should be made for removal of the tree or pruning of deadwood.']

Ratio Decidendi

The evidence did not establish that branches, insects, leaves, debris, or whole-tree failure had caused or were likely in the near future to cause property damage, and those matters did not justify removal of the Sydney Blue Gum. However, because deadwood was present in the canopy over an area used by the applicant and larger deadwood was likely to cause injury if it fell and struck a person, the statutory threshold in section 10(2) was met. The appropriate order was pruning of deadwood, not removal of the tree.

Court Disposition

The application is upheld; the application to remove the Sydney Blue Gum is dismissed; pruning and ongoing deadwood management orders are made.

Orders

  • ['The application is upheld.' 'The application to remove the Sydney Blue Gum is dismissed.' "Within 30 days of the date of this order, the respondent is to engage and pay for an AQF Level 3 Arborist with appropriate insurances to prune the deadwood from the Sydney Blue Gum. All deadwood with a diameter of greater...