Grego v Bordas [2011] NSWLEC 1182

Grego v Bordas [2011] NSWLEC 1182

The Court was satisfied that the south-eastern branch could fail in the near future and cause damage to the applicant's property, enlivening jurisdiction under s 10(2). However, there was no evidence that the whole tree should be removed, and the Court did not accept that removal of the south-eastern branch would unduly affect the tree's structural integrity or health. Considering the tree's amenity, public amenity, and biodiversity value under s 12, the appropriate order was removal of the south-eastern branch rather than removal of the tree.

Jurisdiction
Australia
Judgment Date
04 July 2011
Procedural Posture
Class 2 Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Removal of a Tree / Principal Judgment
Outcome
Application to remove the tree dismissed; removal of the south-eastern branch ordered.
Legal Topics
['application to Remove Tree' 'pruning of Overhanging Branch' 'likely Damage to Property' 'amenity and Biodiversity Considerations']
['trees Disputes Between Neighbours' 'property Damage'] ['application to Remove Tree' 'pruning of Overhanging Branch' 'likely Damage to Property' 'amenity and Biodiversity Considerations']

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Procedural Posture

Class 2 Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Removal of a Tree / Principal 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 or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the whole tree should be removed or whether removal of the south-eastern branch was the appropriate order after considering matters under s 12 of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The Court was satisfied that the south-eastern branch could fail in the near future and cause damage to the applicant's property, enlivening jurisdiction under s 10(2). However, there was no evidence that the whole tree should be removed, and the Court did not accept that removal of the south-eastern branch would unduly affect the tree's structural integrity or health. Considering the tree's amenity, public amenity, and biodiversity value under s 12, the appropriate order was removal of the south-eastern branch rather than removal of the tree.

Court Disposition

Application to remove the tree dismissed; removal of the south-eastern branch ordered.

Orders

  • ['The application to remove the tree is dismissed.' 'The respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance to remove the south-eastern branch identified in Plates 3 and 4 of the Smith report and reproduced in this judgment.' 'The work is to be carried out in accordance with...