Parisi v Michaels [2009] NSWLEC 1197

Parisi v Michaels [2009] NSWLEC 1197

The tree had not caused and was not causing damage to Mrs Parisi's property, and damage was not likely in the near future after recent pruning, so the s 10(2)(a) tests were not met. However, because branch failure remained likely and branches could fall into Mrs Parisi's yard, the tree was likely to cause injury and the s 10(2)(b) test was satisfied. Considering the s 12 matters, including community support, environmental and amenity benefits, recent reduction of overhanging branches, and Dr Michaels' willingness to fund management works, the appropriate response was retention with ongoing inspection, pruning, reporting and risk-management orders rather than removal.

Jurisdiction
Australia
Judgment Date
19 May 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 for Removal of a Tree on the Basis of Risk of Injury to People / Ex Tempore Judgment
Outcome
Application upheld in part; tree retained subject to management orders.
Legal Topics
['senescence' 'tree Management' 'injury' 'termites' 'damage to Property' 'access to Light']
['land and Environment' 'trees Disputes Between Neighbours'] ['senescence' 'tree Management' 'injury' 'termites' 'damage to Property' 'access to Light']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 for Removal of a Tree on the Basis of Risk of Injury to People / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree was likely to cause injury to any person under s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether overshadowing or obstruction of access to light could constitute damage to property for the purposes of the Act.' 'If a statutory test was satisfied, what discretionary orders should be made for the tree.']

Ratio Decidendi

The tree had not caused and was not causing damage to Mrs Parisi's property, and damage was not likely in the near future after recent pruning, so the s 10(2)(a) tests were not met. However, because branch failure remained likely and branches could fall into Mrs Parisi's yard, the tree was likely to cause injury and the s 10(2)(b) test was satisfied. Considering the s 12 matters, including community support, environmental and amenity benefits, recent reduction of overhanging branches, and Dr Michaels' willingness to fund management works, the appropriate response was retention with ongoing inspection, pruning, reporting and risk-management orders rather than removal.

Court Disposition

Application upheld in part; tree retained subject to management orders.

Orders

  • ['These orders apply to 2 Marooba Road, Northbridge, and 1 Kiola Road, Northbridge.' 'The tree shall be inspected by an AQF Level 5 arborist and an expert in tree restraint systems to determine whether any restraint system is necessary within the next year. They shall prepare a written joint report within 60 days of...