Wilk & Bonett v Magee [2010] NSWLEC 1070

Wilk & Bonett v Magee [2010] NSWLEC 1070

The structural condition of the tree would not improve, its defects were significant, and it was likely to cause injury or damage to the applicants' property; because two tests under s 10(2) were satisfied, the Court's jurisdiction was enlivened and removal orders could be made.

Jurisdiction
Australia
Judgment Date
19 March 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After on Site Hearing
Outcome
Application to remove the tree upheld.
Legal Topics
['injury to Persons' 'damage to Property' 'tree Removal' 'replanting']
['trees (neighbours)' 'land and Environment'] ['injury to Persons' 'damage to Property' 'tree Removal' 'replanting']

Case Brief

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the tree has caused, is causing, or is likely in the near future to cause damage to the applicants' property." 'Whether the tree is likely to cause injury to any person.' 'Whether orders should be made for removal of the tree and replacement planting.']

Ratio Decidendi

The structural condition of the tree would not improve, its defects were significant, and it was likely to cause injury or damage to the applicants' property; because two tests under s 10(2) were satisfied, the Court's jurisdiction was enlivened and removal orders could be made.

Court Disposition

Application to remove the tree upheld.

Orders

  • ['The application to remove the tree is upheld.' 'The respondent is to engage and pay for an AQF level 3 arborist to remove the tree and to grind the stump to a depth of 200 mm below ground.' 'The works are to be undertaken in accordance with the WorkCover Code of Practice for the Amenity Tree Industry.' 'The...