Cramer & anor v Howard & anor [2015] NSWLEC 1123

Cramer & anor v Howard & anor [2015] NSWLEC 1123

S 10(2) of the Act is satisfied only to the extent that dead wood in the subject trees presents a foreseeable risk of property damage or injury within the next 12 months. No evidence justifies whole-tree removal or significant pruning. Compensation for 50% of the insurance excess for the skylight damage is reasonable on the balance of evidence. Other compensation claims, risk of injury from overshadowing, sap, bushfire, or leaf drop are not legally attributable to the trees under established principles.

Parties
Applicant: Mr Daniel Cramer; Applicant: Dr Sabine Ludewig; Respondent: Mr Ken Howard; Respondent: Mrs Robyn Howard
Jurisdiction
Australia
Judgment Date
27 April 2015
Procedural Posture
Tree Dispute Application (class 2) / Judgment After Hearing
Outcome
Application upheld in part
Legal Topics
Tree Disputes, Neighbourhood Disputes, Compensation for Property Damage, Risk of Injury, Jurisdiction Under Trees (disputes Between Neighbours) Act 2006
Environmental Law Property Law Tree Disputes Neighbourhood Disputes Compensation for Property Damage Risk of Injury Jurisdiction Under Trees (disputes Between Neighbours) Act 2006

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Parties

Mr Daniel Cramer

Applicant

Dr Sabine Ludewig

Applicant

Mr Ken Howard

Respondent

Mrs Robyn Howard

Respondent

Procedural Posture

Tree Dispute Application (class 2) / Judgment After Hearing

Legal Issues

  1. 1 Whether the respondents' trees caused or are likely to cause damage to the applicants' property or injury to any person under s 10(2) Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether compensation should be ordered for property damage allegedly caused by the trees
  3. 3 Whether removal or pruning of the trees should be ordered

Ratio Decidendi

S 10(2) of the Act is satisfied only to the extent that dead wood in the subject trees presents a foreseeable risk of property damage or injury within the next 12 months. No evidence justifies whole-tree removal or significant pruning. Compensation for 50% of the insurance excess for the skylight damage is reasonable on the balance of evidence. Other compensation claims, risk of injury from overshadowing, sap, bushfire, or leaf drop are not legally attributable to the trees under established principles.

Court Disposition

Application upheld in part

Orders

  • Application to remove trees 1 and 2 is refused.
  • Within 12 months, respondents to engage and pay for AQF level 3 arborist (supervised by AQF level 5) to inspect, and remove deadwood greater than 40mm from each of three trees.