Gray v Chan & Anor [2011] NSWLEC 1058

Gray v Chan & Anor [2011] NSWLEC 1058

The combination of defects in the large stem growing over the applicant's property, including decay and a hollow near the basal union, created a significant risk that the stem would fail within 12 months and fall onto the applicant's dwelling, causing significant damage. Pruning would leave an ongoing risk of damage...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 March 2011
Procedural Posture
Class 2 Application Under Pt 2 S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application to remove the tree was upheld.
Legal Topics
['damage to Property' 'injury to Persons' 'tree Removal' 'risk of Tree Failure']
['trees Disputes Between Neighbours'] ['damage to Property' 'injury to Persons' 'tree Removal' 'risk of Tree Failure']

Source-derived case record

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Procedural Posture

Class 2 Application Under Pt 2 S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the Golden Cypress has caused, is causing, or is likely in the near future to cause damage to the applicant's property, or is likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the appropriate order was removal of the tree rather than pruning.']

Ratio Decidendi

The combination of defects in the large stem growing over the applicant's property, including decay and a hollow near the basal union, created a significant risk that the stem would fail within 12 months and fall onto the applicant's dwelling, causing significant damage. Pruning would leave an ongoing risk of damage or injury from falling limbs, and the applicant had not contributed to the risk. The statutory test was met and removal was warranted.

Court Disposition

The application to remove the tree was upheld.

Orders

  • ['The application to remove the tree is upheld.' 'The respondent is to engage and pay for an arborist, with a minimum AQF level 3, to remove the tree to no more than 200mm above ground level, in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.' 'The respondent is to give the...