Kengike & anor v Jeffrey & anor [2016] NSWLEC 1579

Kengike & anor v Jeffrey & anor [2016] NSWLEC 1579

The evidence of direct damage from falling branches to applicants' property was insufficient, but dead, dying and unsound branches in the overhanging tree canopy pose a real risk of future injury or damage. The Court is satisfied its jurisdiction is enlivened and orders targeted pruning by a qualified arborist, rather than complete removal of overhanging branches, balancing applicants' concerns, public amenity, and ecological considerations.

Jurisdiction
Australia
Judgment Date
18 November 2016
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Decision After Hearing
Outcome
Application upheld in part
Legal Topics
['pruning of Overhanging Branches' 'deadwood Removal' 'jurisdictional Tests Under Trees Act' 'assessment of Injury or Damage Risk']
['environmental Law' 'neighbour Disputes'] ['pruning of Overhanging Branches' 'deadwood Removal' 'jurisdictional Tests Under Trees Act' 'assessment of Injury or Damage Risk']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Decision After Hearing

Legal Issues

  1. 1 ["Whether the tree has caused damage to the applicants' property under s10(2) of the Trees Act" 'Whether the tree is likely to cause future damage or injury under s10(2)' 'Appropriate remedial orders under the Act']

Ratio Decidendi

The evidence of direct damage from falling branches to applicants' property was insufficient, but dead, dying and unsound branches in the overhanging tree canopy pose a real risk of future injury or damage. The Court is satisfied its jurisdiction is enlivened and orders targeted pruning by a qualified arborist, rather than complete removal of overhanging branches, balancing applicants' concerns, public amenity, and ecological considerations.

Court Disposition

Application upheld in part

Orders

  • ['Application to prune all overhanging branches dismissed.' "Respondents to engage and pay for an AQF Level 3 arborist to remove all deadwood (diameter >20mm), damaged and dying branches from canopy overhanging applicants' property and up to 2 metres within respondents' property within 60 days." 'All work to comply...