Bradley v Federico & anor [2016] NSWLEC 1381

Bradley v Federico & anor [2016] NSWLEC 1381

Tree T1 was not principally on the respondents' land, so the Trees Act did not apply to it. Tree T2 was on the respondents' land, had already caused damage, showed evidence of prior limb failures, wood-decay fungus and poor branch structure, and further limb failures were likely; pruning would not leave a viable tree, so removal was required. Tree T3 did not appear likely to cause damage or injury. Given the respondents' financial burden, they were not required to compensate the applicant for the insurance excess.

Jurisdiction
Australia
Judgment Date
31 August 2016
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Extemporaneous Decision on Site
Outcome
The application is upheld in respect to the removal of tree T2 only; compensation was refused.
Legal Topics
['tree Removal' 'damage Caused by Falling Branch' 'risk of Future Damage or Injury' 'compensation' "court Jurisdiction Where Tree Is Not on Respondent's Land"]
['trees Disputes Between Neighbours' 'land and Environment Court'] ['tree Removal' 'damage Caused by Falling Branch' 'risk of Future Damage or Injury' 'compensation' "court Jurisdiction Where Tree Is Not on Respondent's Land"]

Case Brief

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Extemporaneous Decision on Site

Legal Issues

  1. 1 ['Whether the Court could make orders for tree T1 under the Trees (Disputes Between Neighbours) Act 2006.' 'Whether trees T2 and T3 should be removed because they had caused, or were likely to cause, damage or injury.' 'Whether the respondents should compensate the applicant for the $500 insurance excess and $234 application fee.']

Ratio Decidendi

Tree T1 was not principally on the respondents' land, so the Trees Act did not apply to it. Tree T2 was on the respondents' land, had already caused damage, showed evidence of prior limb failures, wood-decay fungus and poor branch structure, and further limb failures were likely; pruning would not leave a viable tree, so removal was required. Tree T3 did not appear likely to cause damage or injury. Given the respondents' financial burden, they were not required to compensate the applicant for the insurance excess.

Court Disposition

The application is upheld in respect to the removal of tree T2 only; compensation was refused.

Orders

  • ['The application is upheld in respect to the removal of tree T2.' "Within 90 days of the date of these orders, the respondents are to arrange and pay for an appropriate contractor to remove the tree labelled 'T2' in the application (being the tree that is closest to the applicant's dwelling in the group of three)....