Hooper v Zhang [2022] NSWLEC 1746

Hooper v Zhang [2022] NSWLEC 1746

The Applicant satisfied s 10(1) by making reasonable efforts to reach agreement and giving sufficient notice. Although the Court was not satisfied that major branch failure or root plate failure was likely in the near future to damage the Applicant's property, the tree was dead, had a history of shedding branches...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 November 2022
Procedural Posture
Class 1 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Onsite Hearing; Final Orders
Outcome
Application allowed; orders made requiring the Respondent at his expense to remove the large dead Ironbark tree's branches and reduce the trunks to a maximum height of 6 metres, with related safety, notice, access and working-hours requirements.
Legal Topics
['removal of Dead Tree' 'apprehension of Damage and Injury' 'jurisdictional Requirements Under the Trees (disputes Between Neighbours) Act 2006' 'threatened Species Licence and Replacement Planting' 'responsibility for Cost of Tree Works']
['trees Disputes Between Neighbours' 'land and Environment' 'biodiversity Conservation'] ['removal of Dead Tree' 'apprehension of Damage and Injury' 'jurisdictional Requirements Under the Trees (disputes Between Neighbours) Act 2006' 'threatened Species Licence and Replacement Planting' 'responsibility for Cost of Tree Works']

Source-derived case record

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Procedural Posture

Class 1 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Onsite Hearing; Final Orders

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the owner of the land on which the tree is situated and gave notice of the application.' "Whether the dead Ironbark tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the dead Ironbark tree was likely to cause injury to any person.' 'What orders should be made under the Trees (Disputes between Neighbours) Act 2006, including responsibility for the cost of removal works.']

Ratio Decidendi

The Applicant satisfied s 10(1) by making reasonable efforts to reach agreement and giving sufficient notice. Although the Court was not satisfied that major branch failure or root plate failure was likely in the near future to damage the Applicant's property, the tree was dead, had a history of shedding branches and heavy bark plates onto both properties, and the risk and seriousness of injury would increase if it remained. Section 10(2)(b) was therefore engaged. After considering the s 12 matters, the appropriate order was for the Respondent, at his expense, to arrange relatively urgent removal of all branches and reduction of the trunks to a maximum height of 6 metres, with associated...

Court Disposition

Application allowed; orders made requiring the Respondent at his expense to remove the large dead Ironbark tree's branches and reduce the trunks to a maximum height of 6 metres, with related safety, notice, access and working-hours requirements.

Orders

  • ['Within 40 days of the date of these orders, the Respondent, at his expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to remove the large dead Ironbark tree from the north-eastern corner of his property.' 'All branches of the tree shall be removed, and the trunks shall be...