Cutler v Smith [2007] NSWLEC 832

Cutler v Smith [2007] NSWLEC 832

Although the applicants built near the tree and the tree is healthy, it has caused and may continue to cause some property damage, so limited remedial orders, including arborist pruning and shared compensation for repairs, are appropriate.

Jurisdiction
Australia
Judgment Date
17 December 2007
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Orders made for tree management and sharing of repair costs
Legal Topics
['trees' 'damage to Property' 'risk of Injury']
['environmental Law'] ['trees' 'damage to Property' 'risk of Injury']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Sydney Blue Gum tree has caused, is causing, or will cause damage to property or injury to persons under s 10.2 of the Act' 'Appropriate remedy regarding pruning or removal of the tree and compensation for property damage']

Ratio Decidendi

Although the applicants built near the tree and the tree is healthy, it has caused and may continue to cause some property damage, so limited remedial orders, including arborist pruning and shared compensation for repairs, are appropriate.

Court Disposition

Orders made for tree management and sharing of repair costs

Orders

  • ["Within 90 days, the tree owner must engage an AQF level 3 arborist to remove all deadwood down to 30 mm diameter and small epicormic regrowth within 2 m of the boundary fence annually, at the owner's expense." 'The $330.00 cost to replace roof tiles is to be shared 50:50 between the applicants and the tree owner.'...