Burling v Nolan [2012] NSWLEC 1241

Burling v Nolan [2012] NSWLEC 1241

The Silky Oak had caused damage to the applicant's shed and could in the near future cause further damage or injury; the dead Oak was in advanced disintegration and could cause damage or injury; and the Monterey Cypress had poor form, declining health, and branches that could fail causing damage or injury. Because s 10(2) was satisfied for each tree and pruning was not a practical option, the Court ordered their removal. The applicant was also entitled to reimbursement for minimum shed roof repairs, capped at $1660, because the shed's location and configuration were reasonable and the damage was caused by the Silky Oak.

Jurisdiction
Australia
Judgment Date
28 August 2012
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination
Outcome
Application to remove trees upheld. Application for compensation upheld.
Legal Topics
['damage to Property From Trees' 'risk of Injury From Trees' 'removal of Trees' 'compensation for Tree Damage']
['land and Environment' 'tree Disputes Between Neighbours'] ['damage to Property From Trees' 'risk of Injury From Trees' 'removal of Trees' 'compensation for Tree Damage']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination

Legal Issues

  1. 1 ["Whether the trees had caused, were causing, or could in the near future cause damage to the applicant's property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made for removal of the Silky Oak, dead Oak, and Monterey Cypress.' 'Whether the Court had jurisdiction to make orders to prevent damage to a fence the applicant wished to erect.' 'Whether the applicant should receive compensation for damage to the shed roof caused by a falling branch.']

Ratio Decidendi

The Silky Oak had caused damage to the applicant's shed and could in the near future cause further damage or injury; the dead Oak was in advanced disintegration and could cause damage or injury; and the Monterey Cypress had poor form, declining health, and branches that could fail causing damage or injury. Because s 10(2) was satisfied for each tree and pruning was not a practical option, the Court ordered their removal. The applicant was also entitled to reimbursement for minimum shed roof repairs, capped at $1660, because the shed's location and configuration were reasonable and the damage was caused by the Silky Oak.

Court Disposition

Application to remove trees upheld. Application for compensation upheld.

Orders

  • ['The application to remove the trees is upheld.' 'Within 40 days of the date of these orders the respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the Silky Oak, dead Oak, and Monterey Cypress to a height of no more than 1.5m above ground.' 'The work is to be...