Turner v O'Donnell [2009] NSWLEC 1349

Turner v O'Donnell [2009] NSWLEC 1349

The tree has caused some limited damage and injury but not sufficient to warrant removal. Compensation is refused as the respondent was not notified and could not take remedial steps. The appropriate order is for removal of dead wood over 20mm in diameter by an arborist to address future risk.

Parties
Applicant: Ken Turner; Respondent: John O'Donnell
Jurisdiction
Australia
Judgment Date
09 October 2009
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application to remove the tree refused; compensation claims refused; orders for dead wood removal granted
Legal Topics
Tree Disputes, Removal of Trees, Damage to Property, Injury to Person
Environmental Law Tree Disputes Removal of Trees Damage to Property Injury to Person

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Parties

Ken Turner

Applicant

John O'Donnell

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 Whether the tree has caused, is causing or is likely to cause damage to property or injury to persons under section 10(2) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether removal of the tree or other orders should be made
  3. 3 Entitlement to compensation for alleged property damage and injury

Ratio Decidendi

The tree has caused some limited damage and injury but not sufficient to warrant removal. Compensation is refused as the respondent was not notified and could not take remedial steps. The appropriate order is for removal of dead wood over 20mm in diameter by an arborist to address future risk.

Court Disposition

Application to remove the tree refused; compensation claims refused; orders for dead wood removal granted

Orders

  • The application to remove the tree is refused.
  • The respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood down to 20 mm in diameter from the tree, in accordance with AS4373 and WorkCover Code.