Burke v Springer [2012] NSWLEC 1245

Burke v Springer [2012] NSWLEC 1245

The tree had caused damage to the applicant's property and, because of the amount and location of dead wood and the predictable nature of dead wood failure, could in the near future cause damage or injury. Section 10(2) was therefore satisfied. Considering the matters in s 12, removal of all overhanging branches was not justified, but removal of the lowest limb over the chook shed, hanging branches, dead wood from specified overhanging parts, and periodic dead wood removal were appropriate, with the respondent to bear the cost.

Jurisdiction
Australia
Judgment Date
27 August 2012
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination
Outcome
Application to prune tree upheld in part.
Legal Topics
['trees Disputes Between Neighbours' 'damage to Property' 'risk of Injury to Persons' 'pruning of Overhanging Branches' 'dead Wood Removal']
['environmental Law' 'property Law'] ['trees Disputes Between Neighbours' 'damage to Property' 'risk of Injury to Persons' 'pruning of Overhanging Branches' 'dead Wood Removal']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination

Legal Issues

  1. 1 ['Whether the tree has caused, is causing, or could in the near future cause damage to property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'What pruning or other orders were appropriate after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the respondent should bear the cost of the pruning works.']

Ratio Decidendi

The tree had caused damage to the applicant's property and, because of the amount and location of dead wood and the predictable nature of dead wood failure, could in the near future cause damage or injury. Section 10(2) was therefore satisfied. Considering the matters in s 12, removal of all overhanging branches was not justified, but removal of the lowest limb over the chook shed, hanging branches, dead wood from specified overhanging parts, and periodic dead wood removal were appropriate, with the respondent to bear the cost.

Court Disposition

Application to prune tree upheld in part.

Orders

  • ['The application for the pruning of overhanging branches is upheld in part.' "Within 60 days of the date of the orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the lowest limb growing to the east over the applicant's chook shed back to the trunk at the branch collar, remove all...