Torresan v Sawyer & anor [2015] NSWLEC 1012

Torresan v Sawyer & anor [2015] NSWLEC 1012

Tree 1 had defects including lean, sparse crown, a narrow fork with included bark, stem wound and measured movement more likely due to gradual root plate failure, making failure onto the applicant's property likely in the near future and likely to cause damage or injury. Tree 2's long northern limb had an angle and foliage weight creating a risk of failure likely to damage the applicant's roof or guttering. The s 10(2) jurisdictional test was satisfied for both trees, so removal of Tree 1, pruning of Tree 2 and replanting were appropriate.

Jurisdiction
Australia
Judgment Date
30 January 2015
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application is upheld in part.
Legal Topics
['risk of Damage or Injury From Trees' 'tree Removal' 'tree Pruning' 'replanting']
['land and Environment' 'trees Disputes Between Neighbours'] ['risk of Damage or Injury From Trees' 'tree Removal' 'tree Pruning' 'replanting']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether Tree 1 was likely to cause injury to a person or damage to the applicant's property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether Tree 2 was likely to cause damage to the applicant's property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'What orders should be made for removal, pruning and replanting.']

Ratio Decidendi

Tree 1 had defects including lean, sparse crown, a narrow fork with included bark, stem wound and measured movement more likely due to gradual root plate failure, making failure onto the applicant's property likely in the near future and likely to cause damage or injury. Tree 2's long northern limb had an angle and foliage weight creating a risk of failure likely to damage the applicant's roof or guttering. The s 10(2) jurisdictional test was satisfied for both trees, so removal of Tree 1, pruning of Tree 2 and replanting were appropriate.

Court Disposition

The application is upheld in part.

Orders

  • ['Within 30 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the Blue Gum (Tree 1) in their rear garden to no higher than one metre above ground level.' "Within 30 days of the date of these...