Brown & anor v Weaver [2007] NSWLEC 738

Brown & anor v Weaver [2007] NSWLEC 738

Because more than 50% of the base of the tree's trunk at ground level was on Ms Weaver's property, the tree was situated principally on her land for s 4(3). On the evidence and the Court's inspection, the tree was likely to fail further in the near future and damage the Browns' property, so complete removal was appropriate. Given the prior work, the opening of the canopy, the parties' quotations, and concerns about Tree Masters, Bolans should perform the work and the parties should share the removal cost equally, with the Browns' contribution capped at half of Bolans' $1980 quotation.

Jurisdiction
Australia
Judgment Date
22 October 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment
Outcome
Orders made pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 for removal of the tree and sharing of costs.
Legal Topics
['neighbour Application' 'tree Situated on Boundary' 'meaning of Situated Wholly or Principally on Land' 'tree Removal' 'apportionment of Removal Costs' 'access for Tree Works']
['land and Environment' 'tree Disputes Between Neighbours'] ['neighbour Application' 'tree Situated on Boundary' 'meaning of Situated Wholly or Principally on Land' 'tree Removal' 'apportionment of Removal Costs' 'access for Tree Works']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment

Legal Issues

  1. 1 ["Whether the Cypress tree was situated principally on Ms Weaver's land for the purposes of s 4(3) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the tree was likely to fail in the near future and damage the Browns' property." 'Who should undertake the removal work and how the costs should be apportioned.']

Ratio Decidendi

Because more than 50% of the base of the tree's trunk at ground level was on Ms Weaver's property, the tree was situated principally on her land for s 4(3). On the evidence and the Court's inspection, the tree was likely to fail further in the near future and damage the Browns' property, so complete removal was appropriate. Given the prior work, the opening of the canopy, the parties' quotations, and concerns about Tree Masters, Bolans should perform the work and the parties should share the removal cost equally, with the Browns' contribution capped at half of Bolans' $1980 quotation.

Court Disposition

Orders made pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 for removal of the tree and sharing of costs.

Orders

  • ['Bolans Tree Service Pty Limited is to undertake the removal work.' "No work is permitted to be undertaken on the Browns' property until Bolans provides proof of appropriate insurances to the Browns or their legal representatives." "The Browns' liability for contribution to the removal cost is capped by reference...