Jessup v Watson [2022] NSWLEC 1694

Jessup v Watson [2022] NSWLEC 1694

Because the broken branch presents a genuine and sufficient risk of injury to persons (particularly the respondent) within the meaning of the Trees (Disputes between Neighbours) Act 2006 s 10(2)(b), the Court is justified in ordering its removal. However, the facts that the branch does not pose a real risk of damage to the applicant's property, the tree predated the applicant's dwelling, and the applicant failed to give the respondent adequate opportunity to respond, support the apportionment of the costs of works equally and the refusal of compensation for prior arborist fees.

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Trees (disputes Between Neighbours) / Extemporaneous Decision; Principal Judgment—final Orders
Outcome
Orders made for removal (pruning) of the broken branch by qualified arborists at shared cost; costs of works to be split 50%/50% (subject to a cap); claims for legal costs and arborist call out fee compensation refused.
Legal Topics
['trees (disputes Between Neighbours) Act 2006' 'apprehension of Damage and Injury' 'removal/pruning of Tree Branches' 'responsibility for Costs']
['environmental Law' 'property Law'] ['trees (disputes Between Neighbours) Act 2006' 'apprehension of Damage and Injury' 'removal/pruning of Tree Branches' 'responsibility for Costs']

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

Trees (disputes Between Neighbours) / Extemporaneous Decision; Principal Judgment—final Orders

Legal Issues

  1. 1 ["Whether the jurisdictional tests of s 10 of the Trees (Disputes between Neighbours) Act 2006 are met to permit orders for the removal/pruning of a broken branch on the respondent's tree" 'Whether there is sufficient risk of injury or likelihood of damage to support an order under s 10(2) of the Act' 'How the costs of remedial works should be apportioned given the circumstances' 'Whether the applicant is entitled to compensation for prior arborist fees']

Ratio Decidendi

Because the broken branch presents a genuine and sufficient risk of injury to persons (particularly the respondent) within the meaning of the Trees (Disputes between Neighbours) Act 2006 s 10(2)(b), the Court is justified in ordering its removal. However, the facts that the branch does not pose a real risk of damage to the applicant's property, the tree predated the applicant's dwelling, and the applicant failed to give the respondent adequate opportunity to respond, support the apportionment of the costs of works equally and the refusal of compensation for prior arborist fees.

Court Disposition

Orders made for removal (pruning) of the broken branch by qualified arborists at shared cost; costs of works to be split 50%/50% (subject to a cap); claims for legal costs and arborist call out fee compensation refused.

Orders

  • ['Within 60 days, respondent to employ AQF level 3 arborists to prune the broken branch in accordance with AS4373-2007 Clause 7.2.4.' 'Within 3 days of completion, respondent to email applicant a paid itemised invoice for the works.' 'Within 3 days of receipt of invoice, applicant to reimburse respondent 50% of the...