Collins v Rice [2018] NSWLEC 1238

Collins v Rice [2018] NSWLEC 1238

Tree 1 had damaged the applicants' property and its history of limb failure, together with the structurally compromised stem wound, made further damage or injury likely; pruning could not sufficiently reduce the risk without making the tree non-viable, so removal was required. Tree 2 had not caused damage and was not likely to fall in the near future, but its dead branches and long limbs over the applicants' property could fail and cause injury; removal was disproportionate and pruning was sufficient. The application was therefore upheld with orders for Tree 1's removal and Tree 2's pruning.

Jurisdiction
Australia
Judgment Date
16 May 2018
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment; Final Orders
Outcome
The application is upheld.
Legal Topics
['damage to Property' 'injury' 'tree Limb Failure' 'tree Removal' 'tree Pruning']
['trees Disputes Between Neighbours' 'environmental Law' 'property Law'] ['damage to Property' 'injury' 'tree Limb Failure' 'tree Removal' 'tree Pruning']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment; Final Orders

Legal Issues

  1. 1 ["Whether Tree 1 had caused, was causing, or was likely in the near future to cause damage to the applicants' property or injury so as to enliven the Court's jurisdiction under the Trees (Disputes Between Neighbours) Act 2006 (NSW)." 'Whether Tree 2 was likely in the near future to cause damage or injury and what orders, if any, should be made.' 'Whether removal or pruning was the appropriate response after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006 (NSW).']

Ratio Decidendi

Tree 1 had damaged the applicants' property and its history of limb failure, together with the structurally compromised stem wound, made further damage or injury likely; pruning could not sufficiently reduce the risk without making the tree non-viable, so removal was required. Tree 2 had not caused damage and was not likely to fall in the near future, but its dead branches and long limbs over the applicants' property could fail and cause injury; removal was disproportionate and pruning was sufficient. The application was therefore upheld with orders for Tree 1's removal and Tree 2's pruning.

Court Disposition

The application is upheld.

Orders

  • ['Within 6 months of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with appropriate insurances, to remove Tree 1 down to a stump no taller than 5 metres.' "Within 6 months of the date of these orders the respondent is to engage...