McHugh & anor v Schmiedte [2010] NSWLEC 1163

McHugh & anor v Schmiedte [2010] NSWLEC 1163

The jurisdiction under s 10(2) was enlivened because a limb from Tree 1 had caused damage to the applicants' property and dead wood in the canopies of the trees could predictably fail and cause damage or injury. However, having considered the matters in s 12, the evidence did not justify removal of the trees or precautionary pruning of overhanging live branches; the appropriate order was removal of dead wood and related inspections and access arrangements.

Jurisdiction
Australia
Judgment Date
28 June 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment After on Site Hearing
Outcome
The application to prune the trees was upheld in part, and the application to remove the trees was dismissed.
Legal Topics
['damage to Property' 'injury to Persons' 'pruning of Trees' 'removal of Dead Wood' 'neighbouring Trees']
['trees Disputes' 'land and Environment'] ['damage to Property' 'injury to Persons' 'pruning of Trees' 'removal of Dead Wood' 'neighbouring Trees']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether any of the 5 Eucalyptus saligna trees has caused, is causing, or is likely in the near future to cause damage to the applicants' property, or is likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Court should order pruning of overhanging branches, removal of dead wood, annual inspection, or removal of the trees.']

Ratio Decidendi

The jurisdiction under s 10(2) was enlivened because a limb from Tree 1 had caused damage to the applicants' property and dead wood in the canopies of the trees could predictably fail and cause damage or injury. However, having considered the matters in s 12, the evidence did not justify removal of the trees or precautionary pruning of overhanging live branches; the appropriate order was removal of dead wood and related inspections and access arrangements.

Court Disposition

The application to prune the trees was upheld in part, and the application to remove the trees was dismissed.

Orders

  • ['The application to prune the trees is upheld in part.' 'The application to remove the trees is dismissed.' 'The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood > 30 mm in diameter from all 5 trees. Any stubs from past branch failures are to be removed.' 'All work is to be...