Small v Friggieri [2014] NSWLEC 1033

Small v Friggieri [2014] NSWLEC 1033

No evidence satisfied s 10(2) in relation to the Eucalypt, so no orders could be made for that tree. For the two Bangalow Palms, photographic and oral evidence of fallen fronds, their height and proximity to the clothesline and courtyards, and the uncontested evidence of frond failure and injury satisfied the Court that falling fronds could cause injury and could damage the applicant's property. However, because the palms were healthy and provided amenity, removal was not warranted; regular inspection and removal of dead and declining fronds was the appropriate order.

Jurisdiction
Australia
Judgment Date
26 February 2014
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application upheld in part; pruning and inspection ordered; application to remove the trees dismissed.
Legal Topics
['falling Palm Fronds' 'risk of Injury' 'potential Property Damage' 'leaves and Gutters' 'tree Removal' 'pruning Orders']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['falling Palm Fronds' 'risk of Injury' 'potential Property Damage' 'leaves and Gutters' 'tree Removal' 'pruning Orders']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Eucalypt had caused, was causing, or was likely in the near future to cause damage to the applicant's property or was likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether two Bangalow Palms had caused, were causing, or were likely in the near future to cause damage to the applicant's property or were likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'If jurisdiction was engaged, what orders should be made concerning inspection, pruning or removal of the trees.']

Ratio Decidendi

No evidence satisfied s 10(2) in relation to the Eucalypt, so no orders could be made for that tree. For the two Bangalow Palms, photographic and oral evidence of fallen fronds, their height and proximity to the clothesline and courtyards, and the uncontested evidence of frond failure and injury satisfied the Court that falling fronds could cause injury and could damage the applicant's property. However, because the palms were healthy and provided amenity, removal was not warranted; regular inspection and removal of dead and declining fronds was the appropriate order.

Court Disposition

Application upheld in part; pruning and inspection ordered; application to remove the trees dismissed.

Orders

  • ['The application is upheld in part.' 'Within 21 days of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to inspect the two Bangalow Palms at the rear of his property. Any dead and declining fronds are to be removed in accordance with the relevant provisions of AS4373: 2007...