Snellgrove v Agostini Pty Ltd [2010] NSWLEC 1150

Snellgrove v Agostini Pty Ltd [2010] NSWLEC 1150

The applicant did not prove that the Eucalyptus nicholii caused the cracking or displacement of pavers, and the paperbarks did not satisfy any s 10(2) test. However, dead wood in the Eucalyptus nicholii and the southern-most smooth-barked Eucalypt could in the near future cause damage to property or injury to persons, enlivening the Court's jurisdiction. Considering the trees' amenity and environmental value, removal was not justified, but removal of specified dead wood was appropriate.

Jurisdiction
Australia
Judgment Date
18 June 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment After Hearing
Outcome
Application to remove the trees dismissed; pruning orders made for removal of dead wood from the two Eucalypts.
Legal Topics
['damage to Property' 'injury to Persons' 'pruning' 'neighbouring Trees']
['trees Disputes' 'property' 'land and Environment Court'] ['damage to Property' 'injury to Persons' 'pruning' 'neighbouring Trees']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the trees had caused, were causing, or were 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 trees were likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether removal of the trees or lesser pruning orders were justified.']

Ratio Decidendi

The applicant did not prove that the Eucalyptus nicholii caused the cracking or displacement of pavers, and the paperbarks did not satisfy any s 10(2) test. However, dead wood in the Eucalyptus nicholii and the southern-most smooth-barked Eucalypt could in the near future cause damage to property or injury to persons, enlivening the Court's jurisdiction. Considering the trees' amenity and environmental value, removal was not justified, but removal of specified dead wood was appropriate.

Court Disposition

Application to remove the trees dismissed; pruning orders made for removal of dead wood from the two Eucalypts.

Orders

  • ['The application to remove the trees is dismissed.' 'The respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood greater than or equal to 30 mm in diameter from the two Eucalypts.' 'This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover...