Choi v Buining & anor [2016] NSWLEC 1024

Choi v Buining & anor [2016] NSWLEC 1024

The statutory threshold in s 10(2) was not met so as to justify removal of either tree. Tree 1 was healthy and did not show evidence of root-related damage to the applicant's dwelling, but its dead wood could cause damage in the near future given its proximity, warranting biennial dead-wooding. Tree 2 did not show evidence of foreseeable whole-tree failure or instability despite past excavation, but dead wood and declining branches overhanging the applicant's dwelling met the near future test, warranting pruning rather than removal. Bushfire risk did not provide a basis for orders under the Trees Act.

Jurisdiction
Australia
Judgment Date
29 January 2016
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Orders Seeking Removal of Two Trees / Final Hearing and Orders
Outcome
The application to remove the trees was dismissed; pruning and recurring dead-wooding orders were made against the respondents.
Legal Topics
['potential Damage to Property or Injury From Trees' 'removal of Trees' 'pruning and Dead Wooding' 'jurisdiction to Award Costs' 'bushfire Risk']
['environmental Law' 'trees Disputes Between Neighbours' 'property Law'] ['potential Damage to Property or Injury From Trees' 'removal of Trees' 'pruning and Dead Wooding' 'jurisdiction to Award Costs' 'bushfire Risk']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Turpentine and Angophora were trees to which the Trees (Disputes Between Neighbours) Act 2006 applies.' "Whether either tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person." 'Whether removal of the trees was warranted or whether pruning orders were appropriate.' 'Whether orders could be made on the basis of bushfire risk.' 'Whether the Commissioner had jurisdiction to order payment of legal costs, expert report costs or application fees.']

Ratio Decidendi

The statutory threshold in s 10(2) was not met so as to justify removal of either tree. Tree 1 was healthy and did not show evidence of root-related damage to the applicant's dwelling, but its dead wood could cause damage in the near future given its proximity, warranting biennial dead-wooding. Tree 2 did not show evidence of foreseeable whole-tree failure or instability despite past excavation, but dead wood and declining branches overhanging the applicant's dwelling met the near future test, warranting pruning rather than removal. Bushfire risk did not provide a basis for orders under the Trees Act.

Court Disposition

The application to remove the trees was dismissed; pruning and recurring dead-wooding orders were made against the respondents.

Orders

  • ['The application to remove the trees is dismissed.' "Within 30 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove all dead wood with a diameter at its base of 40mm or greater from all parts of the Turpentine and Angophora...