McMaster v Adams [2008] NSWLEC 1123

McMaster v Adams [2008] NSWLEC 1123

The Court found that the structural failure of the tree was unlikely in the near future, debris from the tree was unlikely to cause damage if regular maintenance is undertaken, and there was insufficient evidence to link pollen to a serious injury. Therefore, the thresholds under the Act were not met to justify...

Source-derived case information.

Parties
Applicant: Margaret & Clifford McMaster; Respondent: Patricia & Philip Adams
Jurisdiction
Australia
Judgment Date
17 March 2008
Procedural Posture
Neighbour Application Trees (neighbours) / Final Judgment
Outcome
Application dismissed by consent, with agreement for pruning and inspection.
Legal Topics
Tree Disputes, Damage to Property, Injury to Persons, Pruning of Tree, Removal of Tree
Environmental Law Tree Disputes Damage to Property Injury to Persons Pruning of Tree Removal of Tree

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Parties

Margaret & Clifford McMaster

Applicant

Patricia & Philip Adams

Respondent

Procedural Posture

Neighbour Application Trees (neighbours) / Final Judgment

Legal Issues

  1. 1 Is the tree likely to cause damage in the near future?
  2. 2 Is the tree likely to cause injury due to trunk or branch failure?
  3. 3 Is the pollen of the tree likely to cause injury?

Ratio Decidendi

The Court found that the structural failure of the tree was unlikely in the near future, debris from the tree was unlikely to cause damage if regular maintenance is undertaken, and there was insufficient evidence to link pollen to a serious injury. Therefore, the thresholds under the Act were not met to justify removal or further interference with the tree.

Court Disposition

Application dismissed by consent, with agreement for pruning and inspection.

Orders

  • The second major branch from the base of the tree growing towards 35 Brighton Avenue Toronto (approx. 150 mm diameter) to be pruned back to the trunk.
  • Up to three other branches growing towards 35 Brighton Avenue Toronto and having diameter less than 70 mm to be pruned back to the trunk.