Thronberry & Anor v Packer & Anor [2010] NSWLEC 1069

Thronberry & Anor v Packer & Anor [2010] NSWLEC 1069

The Court was not satisfied that alleged root damage or structural defects justified removal of the tree, and staining from insect droppings and ordinary leaf litter did not support removal. However, because falling dead wood was likely to have caused roof damage and was likely to continue, creating potential damage and injury, the s 10(2) jurisdiction was enlivened and pruning by removal of dead wood was the appropriate order rather than removal or compensation.

Jurisdiction
Australia
Judgment Date
17 March 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment After on Site Hearing
Outcome
Application to remove the tree dismissed; compensation claim withdrawn; orders made for periodic removal of dead wood from the tree.
Legal Topics
['damage to Property' 'compensation' 'injury to Persons' 'tree Removal' 'pruning Orders']
['trees (neighbours)' 'property' 'environment and Planning'] ['damage to Property' 'compensation' 'injury to Persons' 'tree Removal' 'pruning Orders']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the mature Eucalyptus pilularis had caused, was causing, or was likely in the near future to cause damage to the applicants' property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree 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, compensation, or pruning orders were appropriate under the Act.']

Ratio Decidendi

The Court was not satisfied that alleged root damage or structural defects justified removal of the tree, and staining from insect droppings and ordinary leaf litter did not support removal. However, because falling dead wood was likely to have caused roof damage and was likely to continue, creating potential damage and injury, the s 10(2) jurisdiction was enlivened and pruning by removal of dead wood was the appropriate order rather than removal or compensation.

Court Disposition

Application to remove the tree dismissed; compensation claim withdrawn; orders made for periodic removal of dead wood from the tree.

Orders

  • ['The application to remove the tree is dismissed.' 'The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood down to 30mm in diameter from the tree.' 'This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for...