Keir v Olson & ors [2014] NSWLEC 1245

Keir v Olson & ors [2014] NSWLEC 1245

Although minor debris, sap, fence and paving issues would not alone warrant orders for removal, the tree had a history of frequent large limb failures without apparent defects, making selective pruning insufficient to mitigate the risk. The Court was satisfied that the tree was likely to cause injury to persons and that removal was the only appropriate option, despite its contribution to public amenity, landscape and environmental values. Replacement of the common boundary fence and planting of a suitable replacement tree were also appropriate.

Jurisdiction
Australia
Judgment Date
02 December 2014
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application is upheld.
Legal Topics
['tree Removal' 'risk of Injury From Falling Limbs' 'damage to Boundary Fence' 'replacement Fencing' 'replacement Planting' 'council Tree Preservation Controls']
['environmental Law' 'trees Disputes Between Neighbours' 'property Law'] ['tree Removal' 'risk of Injury From Falling Limbs' 'damage to Boundary Fence' 'replacement Fencing' 'replacement Planting' 'council Tree Preservation Controls']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the tree caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the tree was likely to cause injury to any person within s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether orders should be made for tree removal, fence replacement and planting a replacement tree despite Council's refusal of permission for tree removal."]

Ratio Decidendi

Although minor debris, sap, fence and paving issues would not alone warrant orders for removal, the tree had a history of frequent large limb failures without apparent defects, making selective pruning insufficient to mitigate the risk. The Court was satisfied that the tree was likely to cause injury to persons and that removal was the only appropriate option, despite its contribution to public amenity, landscape and environmental values. Replacement of the common boundary fence and planting of a suitable replacement tree were also appropriate.

Court Disposition

The application is upheld.

Orders

  • ['Within 30 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) to remove the Eucalypt next to her rear boundary fence to ground level and to grind sufficient of the stump to allow the fence to be reconstructed on the boundary line. These works...