Green v Georganas & Anor [2012] NSWLEC 1009

Green v Georganas & Anor [2012] NSWLEC 1009

The applicant did not prove on the balance of probabilities a causal nexus between the alleged property damage and falling dead wood from the respondents' tree, so compensation was refused. However, the presence of dead branches capable of failing, including branches of 20 mm diameter, was sufficient to establish a...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 January 2012
Procedural Posture
Class 2 Application Under Part 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The claim for compensation was refused, but pruning and arborist assessment orders were made against the respondents.
Legal Topics
['neighbouring Tree Overhanging Property' 'compensation for Alleged Tree Damage' 'dead Wood Pruning' 'arborist Evidence' 'causal Nexus Under S 10(2)']
['trees Disputes' 'neighbour Disputes' 'property Damage' 'risk of Injury'] ['neighbouring Tree Overhanging Property' 'compensation for Alleged Tree Damage' 'dead Wood Pruning' 'arborist Evidence' 'causal Nexus Under S 10(2)']

Source-derived case record

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Procedural Posture

Class 2 Application Under Part 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether falling dead wood from the respondents' tree caused damage to the applicant's roof mounted pool solar fixture, pool fence glass panel and steel roof hip." "Whether the respondents' tree is likely to cause injury to persons in the applicant's rear garden." 'Whether orders should be made for pruning, removal, or compensation under the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the ArborViews report assisted the Court and complied with expert report requirements.']

Ratio Decidendi

The applicant did not prove on the balance of probabilities a causal nexus between the alleged property damage and falling dead wood from the respondents' tree, so compensation was refused. However, the presence of dead branches capable of failing, including branches of 20 mm diameter, was sufficient to establish a likelihood of injury to persons in the applicant's rear garden, giving the Court jurisdiction to order pruning. Having considered the statutory factors, the appropriate response was annual dead wood removal and assessment and pruning of rubbing branches, not removal of the tree or compensation.

Court Disposition

The claim for compensation was refused, but pruning and arborist assessment orders were made against the respondents.

Orders

  • ['The claim for compensation is refused.' 'The respondents are to engage and pay for an AQF level 3 arborist with all necessary insurances to remove all dead wood from the tree canopy to a minimum basal diameter of minimum 20 mm.' 'The arborist is to assess the condition of the two crossing and rubbing branches in...