Gossayn & anor v Barakat [2015] NSWLEC 1006

Gossayn & anor v Barakat [2015] NSWLEC 1006

The Court was not satisfied that Tree 1 was likely in the near future to cause property damage, and removal of Tree 1 or healthy limbs was not necessary. However, because deadwood in the overhanging canopy of Tree 1 and the overhanging limb of Tree 2 was predictably likely to fall and larger sections would likely cause injury to persons using the area below, the statutory threshold in section 10(2) was met for injury and pruning of deadwood was the appropriate order.

Jurisdiction
Australia
Judgment Date
19 January 2015
Procedural Posture
Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application is upheld in part.
Legal Topics
['tree Pruning' 'tree Removal' 'property Damage' 'risk of Injury' 'deadwood' 'near Future']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['tree Pruning' 'tree Removal' 'property Damage' 'risk of Injury' 'deadwood' 'near Future']

Case Brief

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Procedural Posture

Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether Tree 1 had caused, was causing, or was likely in the near future to cause damage to the applicants' property." 'Whether Tree 1 was likely to cause injury to a person because of deadwood in the overhanging canopy.' 'Whether Tree 2 was likely to cause injury to a person because of deadwood on an overhanging limb.' 'Whether removal of Tree 1 or pruning of Tree 1 and Tree 2 was the appropriate order.']

Ratio Decidendi

The Court was not satisfied that Tree 1 was likely in the near future to cause property damage, and removal of Tree 1 or healthy limbs was not necessary. However, because deadwood in the overhanging canopy of Tree 1 and the overhanging limb of Tree 2 was predictably likely to fall and larger sections would likely cause injury to persons using the area below, the statutory threshold in section 10(2) was met for injury and pruning of deadwood was the appropriate order.

Court Disposition

The application is upheld in part.

Orders

  • ['The application is upheld in part.' 'The application to remove Tree 1 is dismissed.' "Within 30 days of the date of this order, the respondent is to engage and pay for an AQF Level 3 Arborist with appropriate insurances to prune Tree 1 and Tree 2 (Stringybarks). All deadwood with a diameter of greater than 20mm at...