Fernandez v Chapman & anor [2017] NSWLEC 1357

Fernandez v Chapman & anor [2017] NSWLEC 1357

The Court was not satisfied that the tree had damaged the applicant's property, and any damage from debris could have been prevented by maintenance. However, deadwood might fall and foliage scraping the roof might cause minor damage sufficient to enliven jurisdiction. Removal of the tree was not required; pruning to remove deadwood and foliage or mistletoe directly within two metres of the existing roofing was proportionate to the level of risk.

Jurisdiction
Australia
Judgment Date
05 July 2017
Procedural Posture
Class 2 Trees Dispute Between Neighbours / Final Orders
Outcome
The application is upheld to the extent of pruning orders; removal of the tree and compensation were not ordered.
Legal Topics
['damage by Trees' 'risk of Damage or Injury' 'tree Debris' 'pruning Orders' 'compensation']
['trees Disputes Between Neighbours' 'land and Environment'] ['damage by Trees' 'risk of Damage or Injury' 'tree Debris' 'pruning Orders' 'compensation']

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Procedural Posture

Class 2 Trees Dispute Between Neighbours / Final Orders

Legal Issues

  1. 1 ["Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether removal of the tree or compensation for alleged property damage should be ordered.' "Whether pruning to remove deadwood and foliage near the applicant's roofing was proportionate to the risk."]

Ratio Decidendi

The Court was not satisfied that the tree had damaged the applicant's property, and any damage from debris could have been prevented by maintenance. However, deadwood might fall and foliage scraping the roof might cause minor damage sufficient to enliven jurisdiction. Removal of the tree was not required; pruning to remove deadwood and foliage or mistletoe directly within two metres of the existing roofing was proportionate to the level of risk.

Court Disposition

The application is upheld to the extent of pruning orders; removal of the tree and compensation were not ordered.

Orders

  • ["Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to remove deadwood greater than 50mm diameter from the tree's crown and to remove any of the tree's foliage and mistletoe directly within 2 metres of the...