Reid v McRae & anor [2016] NSWLEC 1253

Reid v McRae & anor [2016] NSWLEC 1253

A branch from T3 had caused damage to the applicant's dwelling, and predictable failure of deadwood could potentially cause property damage or, at low risk, injury, so the Court's power under s 10(2) was engaged. However, the three trees were healthy, had no obvious structural defects or instability, contributed to the local ecosystem and amenity, and removal was not warranted. The appropriate orders were periodic deadwood and branch-stub removal, removal of constricting vines and hung-up branches, and reimbursement of the applicant's $750 insurance excess.

Jurisdiction
Australia
Judgment Date
21 June 2016
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Decision and Orders After Hearing
Outcome
The application to remove the trees was dismissed, but orders were made for arboricultural works and reimbursement of the applicant's insurance excess.
Legal Topics
['tree Removal' 'deadwood Pruning' 'damage to Adjoining Property' 'risk of Injury' 'insurance Excess' 'leaf Litter' 'bushfire Risk' 'termites']
['trees Disputes Between Neighbours' 'property' 'land and Environment'] ['tree Removal' 'deadwood Pruning' 'damage to Adjoining Property' 'risk of Injury' 'insurance Excess' 'leaf Litter' 'bushfire Risk' 'termites']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Decision and Orders After Hearing

Legal Issues

  1. 1 ["Whether the three trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property or were likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether removal of the three trees was warranted.' 'Whether orders should be made for pruning, removal of deadwood, constricting vines and hung-up branches.' "Whether the respondents should reimburse the applicant's insurance policy excess." 'Whether alleged fire risk, leaf litter and termites justified orders under the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

A branch from T3 had caused damage to the applicant's dwelling, and predictable failure of deadwood could potentially cause property damage or, at low risk, injury, so the Court's power under s 10(2) was engaged. However, the three trees were healthy, had no obvious structural defects or instability, contributed to the local ecosystem and amenity, and removal was not warranted. The appropriate orders were periodic deadwood and branch-stub removal, removal of constricting vines and hung-up branches, and reimbursement of the applicant's $750 insurance excess.

Court Disposition

The application to remove the trees was dismissed, but orders were made for arboricultural works and reimbursement of the applicant's insurance excess.

Orders

  • ['The application to remove the trees is dismissed.' "The respondents are to engage and pay for an arborist with a minimum qualification in arboriculture of AQF level 3, and with appropriate insurance cover, to remove all deadwood down to 40mm diameter at its base from all parts of the three Eucalypts identified in...