Franklin & anor v Webster [2012] NSWLEC 1243

Jurisdiction was established under s 10(2) as the tree has caused damage and may cause further damage in the near future. Removal of the tree is not appropriate, but selective pruning and ongoing dead wood removal are sufficient to address the legitimate risks, balancing the interests protected by the Act.

Parties: Applicant: Mr B Franklin; Applicant: Mrs C Franklin; Respondent: Ms M Webster
Jurisdiction: Australia
Judgment Date: 24 August 2012
Procedural Posture: Application Under Trees (disputes Between Neighbours) Act 2006 / Final Decision on Application
Outcome: Application to remove tree dismissed; pruning and dead wood removal ordered
Legal Topics: Tree Disputes, Neighbour Disputes, Damage to Property, Personal Injury Risk

Environmental Law Property Law Tree Disputes Neighbour Disputes Damage to Property Personal Injury Risk

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Parties

Mr B Franklin

Applicant

Mrs C Franklin

Applicant

Ms M Webster

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Decision on Application

Legal Issues

1 Whether the tree has caused or could cause damage to the applicants' property or injury to any person as required under s 10(2) of the Act
2 What orders are appropriate under s 9 of the Act if jurisdiction is established

Ratio Decidendi

Court Disposition

Application to remove tree dismissed; pruning and dead wood removal ordered

Orders

The application to remove the tree is dismissed.
Within 60 days the respondent is to engage and pay for an AQF level 3 arborist to remove identified branches and dead wood as described.