Stapleton & Anor v Mowbray [2009] NSWLEC 1245

Stapleton & Anor v Mowbray [2009] NSWLEC 1245

Tree 1 contained dead wood that could fall and cause damage or injury, and there was undisputed evidence of damage to a car, so s 10(2) was satisfied for that tree; however, removal was not warranted in light of the tree's condition, values, prior pruning and the appropriate remedial response of deadwood removal. For Trees 2 and 3, there was no evidence of damage or injury and no likelihood of such damage or injury in the near future; concerns about leaves, flowers and small deadwood did not satisfy s 10(2), so the Court had no jurisdiction to order the pruning sought for those trees.

Jurisdiction
Australia
Judgment Date
15 July 2009
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After on Site Hearing
Outcome
Application for removal of Tree 1 and pruning of Trees 2 and 3 refused; limited orders made for periodic deadwood removal.
Legal Topics
["removal of Neighbour's Tree" 'pruning of Overhanging Branches' 'damage to Property' 'risk of Injury From Falling Deadwood' 'leaf Litter and Gutter Maintenance']
['trees Disputes' 'environmental and Planning Law' 'property Law'] ["removal of Neighbour's Tree" 'pruning of Overhanging Branches' 'damage to Property' 'risk of Injury From Falling Deadwood' 'leaf Litter and Gutter Maintenance']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether Tree 1 had caused, was causing, or was likely in the near future to cause damage to the applicants' property or injury to persons." "Whether Trees 2 and 3 had caused, were causing, or were likely in the near future to cause damage to the applicants' property or injury to persons." 'Whether the Court should order removal of Tree 1 or pruning of overhanging branches from Trees 2 and 3.']

Ratio Decidendi

Tree 1 contained dead wood that could fall and cause damage or injury, and there was undisputed evidence of damage to a car, so s 10(2) was satisfied for that tree; however, removal was not warranted in light of the tree's condition, values, prior pruning and the appropriate remedial response of deadwood removal. For Trees 2 and 3, there was no evidence of damage or injury and no likelihood of such damage or injury in the near future; concerns about leaves, flowers and small deadwood did not satisfy s 10(2), so the Court had no jurisdiction to order the pruning sought for those trees.

Court Disposition

Application for removal of Tree 1 and pruning of Trees 2 and 3 refused; limited orders made for periodic deadwood removal.

Orders

  • ['The application to remove Tree 1 is refused.' 'The application to prune overhanging branches of Trees 2 and 3 back to their trunks is refused.' "Due to the presence of dead wood in Tree 1 over the driveway of the applicants' property, and the potential for damage or injury, the respondent is to organise and pay...