Parison v Kelly [2010] NSWLEC 1300

Parison v Kelly [2010] NSWLEC 1300

There was no evidence that branches, leaves and twigs were likely to cause property damage within the next 12 months or that the tree was likely to fail within that period, but the evidence showed that deadwood falling from the tree could cause injury. The Court therefore upheld the application only to the extent necessary to require removal of deadwood, because broader pruning would be detrimental to the health and structure of the tree.

Jurisdiction
Australia
Judgment Date
29 October 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application upheld in part.
Legal Topics
['damage to Property' 'injury to Persons' 'removal of Dead Wood' 'pruning of Amenity Trees']
['trees (neighbours)' 'property'] ['damage to Property' 'injury to Persons' 'removal of Dead Wood' 'pruning of Amenity Trees']

Case Brief

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property." 'Whether the tree is likely to cause injury to any person.' 'What orders, if any, should be made concerning the tree.']

Ratio Decidendi

There was no evidence that branches, leaves and twigs were likely to cause property damage within the next 12 months or that the tree was likely to fail within that period, but the evidence showed that deadwood falling from the tree could cause injury. The Court therefore upheld the application only to the extent necessary to require removal of deadwood, because broader pruning would be detrimental to the health and structure of the tree.

Court Disposition

Application upheld in part.

Orders

  • ['The application is upheld in part.' 'The respondents are to engage and pay for an AQF level 3 arborist to remove all deadwood > 30 mm in diameter from the tree.' 'This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree...