Holborow v Measures [2012] NSWLEC 1101

Holborow v Measures [2012] NSWLEC 1101

T1 posed a risk of damage to the dwelling because its structure meant long live limbs over the dwelling may fail in the near future, and pruning was unsuitable because it would remove a significant portion of the crown and may increase the risk of other limb failures; T1 therefore had to be removed. T2 posed a risk...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 April 2012
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Onsite Hearing
Outcome
Application allowed in part; removal of T1, pruning of T2 and T4, and $400 compensation ordered; application concerning T3 and compensation for the 2010 damage dismissed.
Legal Topics
['damage to Property' 'risk of Damage' 'risk of Injury' 'tree Removal' 'tree Pruning' 'compensation']
['trees (disputes Between Neighbours)' 'property'] ['damage to Property' 'risk of Damage' 'risk of Injury' 'tree Removal' 'tree Pruning' 'compensation']

Source-derived case record

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Onsite Hearing

Legal Issues

  1. 1 ["Whether T1 had caused damage to the applicant's dwelling and posed a risk of future damage or injury requiring removal." 'Whether T2 posed a risk of damage or injury requiring pruning.' "Whether T3 and T4 were likely to damage the applicant's dwelling and required pruning." 'Whether the applicant should be compensated for roof damage and related amounts.']

Ratio Decidendi

T1 posed a risk of damage to the dwelling because its structure meant long live limbs over the dwelling may fail in the near future, and pruning was unsuitable because it would remove a significant portion of the crown and may increase the risk of other limb failures; T1 therefore had to be removed. T2 posed a risk that long limbs and deadwood may fall and cause damage or injury in the near future, which could be remedied by pruning. T3 was not shown to be likely to cause damage in the near future, while T4 could be pruned clear of the guttering to prevent damage. Compensation for the 2010 damage was dismissed because the applicant had not sought it earlier, but the respondents were...

Court Disposition

Application allowed in part; removal of T1, pruning of T2 and T4, and $400 compensation ordered; application concerning T3 and compensation for the 2010 damage dismissed.

Orders

  • ['The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove T1 to ground level. The work is not to be done by crane but by arborists accessing the tree using modern arboricultural climbing techniques.' "The respondents...