Bowler v Mackney [2022] NSWLEC 1250

Bowler v Mackney [2022] NSWLEC 1250

The evidence did not establish that the trees had caused damage that could not have been avoided with reasonable maintenance, or that the trees were likely to cause future damage or injury except as to possible risk from long limbs overhanging the applicant's property. Pruning the specified trees is appropriate to reduce risk, but removal or further orders were not justified.

Parties
Applicant: Kenneth Frederick Bowler; Respondent: Lorraine Beryl Mackney
Jurisdiction
Australia
Judgment Date
13 May 2022
Procedural Posture
Trees (disputes Between Neighbours) Act 2006 Pt 2 Application / Principal Judgment
Outcome
Application granted in part
Legal Topics
Tree Disputes, Damage to Property, Pruning Orders
Environmental Law Neighbour Disputes Tree Disputes Damage to Property Pruning Orders

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Parties

Kenneth Frederick Bowler

Applicant

Lorraine Beryl Mackney

Respondent

Procedural Posture

Trees (disputes Between Neighbours) Act 2006 Pt 2 Application / Principal Judgment

Legal Issues

  1. 1 Whether the respondent's trees have damaged the applicant's property
  2. 2 Whether the trees are likely to cause damage or injury
  3. 3 Appropriateness of orders for removal or pruning under the Trees (Disputes Between Neighbours) Act 2006

Ratio Decidendi

The evidence did not establish that the trees had caused damage that could not have been avoided with reasonable maintenance, or that the trees were likely to cause future damage or injury except as to possible risk from long limbs overhanging the applicant's property. Pruning the specified trees is appropriate to reduce risk, but removal or further orders were not justified.

Court Disposition

Application granted in part

Orders

  • Within 60 days, respondent to engage and pay for an arborist (minimum AQF Level 3) to prune trees T1, T2, and T4 (as identified in evidence) above applicant's property, removing all deadwood greater than 40 mm in diameter and reducing crowns by up to 15% total mass where they extend over applicant's property.
  • All works to comply with Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work' and AS4373.