Watt v Menz [2023] NSWLEC 1808

Watt v Menz [2023] NSWLEC 1808

Branches from the respondents' tree caused damage to the applicant's pool shed, satisfying s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006; while further near-future property damage was not established, there is a moderate risk of injury to persons, particularly children using the pool, from small dead and epicormic branches falling, engaging s 10(2)(b). Intervention by significant pruning of the arching leader is justified, but removal of the tree is unwarranted. Applicant should contribute 25% of the pruning cost due to principal in Black v Johnson (No 2) regarding pre-existence of tree.

Jurisdiction
Australia
Judgment Date
04 December 2023
Procedural Posture
Trees (disputes Between Neighbours) Act 2006 Application / Extempore Principal Judgment
Outcome
Orders made for compensation and tree pruning (not removal) with cost-sharing arrangement.
Legal Topics
['tree Disputes' 'damage to Property' 'compensation' 'pruning Orders']
['environmental Law' 'property Law'] ['tree Disputes' 'damage to Property' 'compensation' 'pruning Orders']

Case Brief

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Procedural Posture

Trees (disputes Between Neighbours) Act 2006 Application / Extempore Principal Judgment

Legal Issues

  1. 1 ['Whether applicant is entitled to compensation for damage caused by a tree on neighbouring land' 'Whether risk of injury to any person from the tree justifies intervention under the Trees (Disputes between Neighbours) Act 2006' 'Appropriate remedy: removal, pruning or no intervention']

Ratio Decidendi

Branches from the respondents' tree caused damage to the applicant's pool shed, satisfying s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006; while further near-future property damage was not established, there is a moderate risk of injury to persons, particularly children using the pool, from small dead and epicormic branches falling, engaging s 10(2)(b). Intervention by significant pruning of the arching leader is justified, but removal of the tree is unwarranted. Applicant should contribute 25% of the pruning cost due to principal in Black v Johnson (No 2) regarding pre-existence of tree.

Court Disposition

Orders made for compensation and tree pruning (not removal) with cost-sharing arrangement.

Orders

  • ['Within 14 days, respondents to pay applicant $280.00 by EFT as compensation for pool shed damage.' "Respondents to engage AQF level 3 insured arborists to prune the trunk (of the four) leaning over applicant's pool, down to highest co-dominant stem junction, within 90 days." 'Within 7 days of completion of works,...