Ewen & anor v Whan & anor [2016] NSWLEC 1501

Ewen & anor v Whan & anor [2016] NSWLEC 1501

The tree has caused damage to the applicants' property and the Court is satisfied under s 10(2) of the Trees Act that jurisdiction to make orders is enlivened. However, removal is not warranted; appropriate maintenance by annual pruning by arborists will manage the risk of further damage or injury, debris...

Source-derived case information.

Parties
Applicant: Helen Ewen; Applicant: Paul Dusan; Respondent: Renee Whan; Respondent: Greg Fountain
Jurisdiction
Australia
Judgment Date
27 October 2016
Procedural Posture
Trees Dispute / Judgment
Outcome
Application upheld
Legal Topics
Trees Disputes Between Neighbours, Council Tree Protection, Pruning Orders
Environmental Law Trees Disputes Between Neighbours Council Tree Protection Pruning Orders

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Parties

Helen Ewen

Applicant

Paul Dusan

Applicant

Renee Whan

Respondent

Greg Fountain

Respondent

Procedural Posture

Trees Dispute / Judgment

Legal Issues

  1. 1 Whether the tree has caused or is likely to cause damage to property or injury to any person
  2. 2 Whether compensation or removal/pruning of the tree is appropriate

Ratio Decidendi

The tree has caused damage to the applicants' property and the Court is satisfied under s 10(2) of the Trees Act that jurisdiction to make orders is enlivened. However, removal is not warranted; appropriate maintenance by annual pruning by arborists will manage the risk of further damage or injury, debris maintenance is a normal responsibility in urban settings and does not warrant compensation.

Court Disposition

Application upheld

Orders

  • Respondents to engage a suitably qualified arborist (minimum AQF level 3) with insurance to prune the Sydney Blue Gum within 60 days: remove deadwood >20 mm, hazardous limbs, reduce overextended limbs but remove no more than 10% live crown mass.
  • Pruning to be undertaken as per AS4373 Pruning of amenity trees and WorkCover NSW Code of practice.