Chesters v Oakes [2016] NSWLEC 1504

Chesters v Oakes [2016] NSWLEC 1504

The Court accepted that a branch from Tree 1 damaged the applicant's property, giving jurisdiction to make orders to prevent further damage or injury, but found no basis for removal because Tree 1 was not likely to fail entirely and risk could be minimised by pruning. Tree 2 had not damaged the applicant's property and was not shown to be likely to cause damage in the near future or injury, so no orders could be made for Tree 2 under s10(2) of the Trees Act.

Jurisdiction
Australia
Judgment Date
25 October 2016
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Orders for Removal of Two Trees / Principal Judgment and Orders
Outcome
The application is upheld. Orders were made requiring pruning of Tree 1; no orders were made for Tree 2.
Legal Topics
['damage From Tree Branches' 'tree Debris' 'orders for Pruning' 'jurisdiction Under S10(2) of the Trees (disputes Between Neighbours) Act 2006']
['land and Environment' 'trees Disputes Between Neighbours'] ['damage From Tree Branches' 'tree Debris' 'orders for Pruning' 'jurisdiction Under S10(2) of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Orders for Removal of Two Trees / Principal Judgment and Orders

Legal Issues

  1. 1 ["Whether debris on the applicant's roof and gutters amounted to damage caused by the respondent's trees." "Whether Tree 1 had caused damage to the applicant's property and justified orders to prevent further damage or injury." 'Whether Tree 2 had caused damage, was likely to cause damage in the near future, or was likely to cause injury.' 'Whether removal or pruning of the trees was an appropriate order.']

Ratio Decidendi

The Court accepted that a branch from Tree 1 damaged the applicant's property, giving jurisdiction to make orders to prevent further damage or injury, but found no basis for removal because Tree 1 was not likely to fail entirely and risk could be minimised by pruning. Tree 2 had not damaged the applicant's property and was not shown to be likely to cause damage in the near future or injury, so no orders could be made for Tree 2 under s10(2) of the Trees Act.

Court Disposition

The application is upheld. Orders were made requiring pruning of Tree 1; no orders were made for Tree 2.

Orders

  • ["Within 12 months of the date of these orders, the respondent is to engage at his cost a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune Tree 1 by removing all deadwood greater than 20 mm in diameter within 5 metres of the common boundary and removing the lowest live limb...