Duncan & anor v Osland [2013] NSWLEC 1136

Duncan & anor v Osland [2013] NSWLEC 1136

The tree caused damage to the applicants' property and posed a risk of further damage and injury; its removal was ordered as dead wood removal was impractical, and the respondent must reimburse the applicants' insurance excess due to prior notice of the risk.

Parties
Applicants: Mr G & Mrs S Duncan; Respondent: Mr G Osland
Jurisdiction
Australia
Judgment Date
23 July 2013
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Determination
Outcome
Application upheld; tree to be removed; compensation ordered
Legal Topics
Trees on Adjoining Properties, Damage to Property, Compensation for Damage, Removal of Dangerous Trees
Property Law Environmental Law Trees on Adjoining Properties Damage to Property Compensation for Damage Removal of Dangerous Trees

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Parties

Mr G & Mrs S Duncan

Applicants

Mr G Osland

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the tree caused or is likely to cause damage to property or injury to persons
  2. 2 Whether the tree should be removed
  3. 3 Entitlement to compensation for damaged property

Ratio Decidendi

The tree caused damage to the applicants' property and posed a risk of further damage and injury; its removal was ordered as dead wood removal was impractical, and the respondent must reimburse the applicants' insurance excess due to prior notice of the risk.

Court Disposition

Application upheld; tree to be removed; compensation ordered

Orders

  • Within 30 days, the respondent to engage and pay for AQF level 3 arborist to remove the tree to the point where the trunk divides into three stems, with the trunk treated to prevent suckering.
  • Arborist to liaise with nearest wildlife carer, inform them of removal date, and have rescue plan in place.