Hepworth v Trzebiatowski [2022] NSWLEC 1093

Hepworth v Trzebiatowski [2022] NSWLEC 1093

Tree 1 is not likely to fail within 12 months, but deadwood and overhanging branches are likely to fail and cause damage/injury; risk can be reasonably mitigated by pruning. Tree 2 is in poor health and likely to fall in the near future; removal is warranted. Orders should mitigate risk without adversely impacting environmental or amenity values.

Jurisdiction
Australia
Judgment Date
17 February 2022
Procedural Posture
Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Final Orders
Outcome
Application granted in part
Legal Topics
['trees (disputes Between Neighbours)' 'neighbour Disputes' 'tree Pruning and Removal' 'risk of Damage or Injury' 'bushfire Risk']
['property' 'environmental'] ['trees (disputes Between Neighbours)' 'neighbour Disputes' 'tree Pruning and Removal' 'risk of Damage or Injury' 'bushfire Risk']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the trees are likely to cause damage to property or injury to persons under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006' 'Appropriate orders for pruning or removal' 'Whether reasonable effort to reach agreement was made before proceedings']

Ratio Decidendi

Tree 1 is not likely to fail within 12 months, but deadwood and overhanging branches are likely to fail and cause damage/injury; risk can be reasonably mitigated by pruning. Tree 2 is in poor health and likely to fall in the near future; removal is warranted. Orders should mitigate risk without adversely impacting environmental or amenity values.

Court Disposition

Application granted in part

Orders

  • ["Within 60 days respondents to engage qualified arborist to prune Tree 1 (Grey Gum) removing all deadwood >40mm diameter above both properties within 3 metres of boundary and reduce crown over applicant's property by up to 15% total crown mass" 'Remove Tree 2 (Black Tea-tree) to no more than 500mm above ground'...