Thomas v Al-Mouzafar [2019] NSWLEC 1104

Thomas v Al-Mouzafar [2019] NSWLEC 1104

Seven trees were dead, the remaining two were likely to die shortly, T1's root-plate had failed, and the previous failure of another tree indicated a likelihood that other trees in the row would fail in the near future. Because any of the trees might fall onto the applicant's sheds or garden areas where people relax, the risk of damage or injury was sufficient to warrant removal orders, although fire risk itself was outside the Court's jurisdiction.

Jurisdiction
Australia
Judgment Date
14 March 2019
Procedural Posture
Class 2 Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) Seeking Orders for Removal of Neighbouring Trees / Principal Judgment; Final Orders
Outcome
Application allowed; orders made for removal of the nine cypress trees and planting of replacement trees.
Legal Topics
['risk of Damage or Injury From Trees' 'dead Trees' 'tree Removal Orders' 'replanting Orders' 'fire Risk and Jurisdiction']
['trees Disputes Between Neighbours' 'land and Environment'] ['risk of Damage or Injury From Trees' 'dead Trees' 'tree Removal Orders' 'replanting Orders' 'fire Risk and Jurisdiction']

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Procedural Posture

Class 2 Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) Seeking Orders for Removal of Neighbouring Trees / Principal Judgment; Final Orders

Legal Issues

  1. 1 ['Whether the nine cypress trees were dead or likely to die and likely to fail in the near future' "Whether the trees were likely to cause damage to the applicant's property or injury to persons in her garden" 'Whether alleged fire risk from dead conifers gave the Court jurisdiction to make orders' "Whether the respondent's amenity, privacy, habitat and property value arguments justified retaining the trees"]

Ratio Decidendi

Seven trees were dead, the remaining two were likely to die shortly, T1's root-plate had failed, and the previous failure of another tree indicated a likelihood that other trees in the row would fail in the near future. Because any of the trees might fall onto the applicant's sheds or garden areas where people relax, the risk of damage or injury was sufficient to warrant removal orders, although fire risk itself was outside the Court's jurisdiction.

Court Disposition

Application allowed; orders made for removal of the nine cypress trees and planting of replacement trees.

Orders

  • ['Within 45 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the nine cypress trees in his back garden to no more than one metre above ground level. The works are to be done in...