Papadopoulos v Chun & anor [2016] NSWLEC 1063

Papadopoulos v Chun & anor [2016] NSWLEC 1063

The Court was not satisfied that the overhanging branches, leaf litter, gutter condition, alleged fence damage, or fire risk justified the orders sought, and no compensation for gutter cleaning was warranted. However, the predictable failure of dead wood from the mature Sydney Blue Gum could cause damage to property on the applicant's land and could potentially cause injury to persons on either property, satisfying s 10(2). Considering the tree's significance, biodiversity value, amenity, and that dead wood removal would not adversely affect tree health if done properly, only removal of dead wood was warranted.

Jurisdiction
Australia
Judgment Date
23 February 2016
Procedural Posture
Class 2 Application Pursuant to S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Orders
Outcome
Application granted in part; pruning ordered.
Legal Topics
['overhanging Branches' 'potential Property Damage or Injury' 'dead Wood Pruning' 'leaf Litter and Gutter Cleaning' 'fire Risk From Tree Debris']
['trees Disputes Between Neighbours' 'property'] ['overhanging Branches' 'potential Property Damage or Injury' 'dead Wood Pruning' 'leaf Litter and Gutter Cleaning' 'fire Risk From Tree Debris']

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Procedural Posture

Class 2 Application Pursuant to S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Orders

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 under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree is likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether orders should be made for removal of overhanging branches, compensation for gutter cleaning, or pruning of dead wood.']

Ratio Decidendi

The Court was not satisfied that the overhanging branches, leaf litter, gutter condition, alleged fence damage, or fire risk justified the orders sought, and no compensation for gutter cleaning was warranted. However, the predictable failure of dead wood from the mature Sydney Blue Gum could cause damage to property on the applicant's land and could potentially cause injury to persons on either property, satisfying s 10(2). Considering the tree's significance, biodiversity value, amenity, and that dead wood removal would not adversely affect tree health if done properly, only removal of dead wood was warranted.

Court Disposition

Application granted in part; pruning ordered.

Orders

  • ['The application is granted in part.' "The respondents are to engage and pay for an arborist with a minimum AQF level 3 qualification in Arboriculture, and appropriate insurance cover, to remove all dead wood >40mm in diameter at its base from all parts of the tree's canopy." 'The work in order (2) is to be...