Sultana v Micallef [2012] NSWLEC 1078

Sultana v Micallef [2012] NSWLEC 1078

Only the conifer, the first eucalypt east of the conifers, and several Large-leaf Privets with branches touching or resting on the applicant's garage and shed satisfied s 10(2), because they could in the near future cause damage to those structures. The eucalypt was to be removed because most of it overhung the shed and pruning would retain little of the tree, while the conifer and privets could be selectively and reduction pruned to provide a 1m clearance. The remaining claims did not satisfy the statutory test or did not warrant discretionary orders.

Jurisdiction
Australia
Judgment Date
29 March 2012
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Application upheld in part; removal of one tree ordered and pruning of others ordered.
Legal Topics
['jurisdictional Test Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006' 'causal Nexus Between Trees and Alleged Damage or Injury' 'overhanging Branches Touching Structures' 'leaf Litter and External Housekeeping' 'termites and Insects Using Trees as Habitat' 'fire Hazard and Noxious Weeds' 'pruning and Removal Orders']
['trees Disputes Between Neighbours' 'land and Environment' 'property Damage' 'personal Injury Risk'] ['jurisdictional Test Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006' 'causal Nexus Between Trees and Alleged Damage or Injury' 'overhanging Branches Touching Structures' 'leaf Litter and External Housekeeping' 'termites and Insects Using Trees as Habitat' 'fire Hazard and Noxious Weeds' 'pruning and Removal 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 on Site Hearing

Legal Issues

  1. 1 ["Whether any of the respondents' trees 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." 'Whether alleged termites, fire risk, noxious weeds, leaf litter, overhanging branches, and risks of falling trees or branches justified orders for removal, pruning, clearing, reimbursement, or other relief.' 'Whether Commissioners had jurisdiction to award reimbursement of the Court filing fee.']

Ratio Decidendi

Only the conifer, the first eucalypt east of the conifers, and several Large-leaf Privets with branches touching or resting on the applicant's garage and shed satisfied s 10(2), because they could in the near future cause damage to those structures. The eucalypt was to be removed because most of it overhung the shed and pruning would retain little of the tree, while the conifer and privets could be selectively and reduction pruned to provide a 1m clearance. The remaining claims did not satisfy the statutory test or did not warrant discretionary orders.

Court Disposition

Application upheld in part; removal of one tree ordered and pruning of others ordered.

Orders

  • ['The application is upheld in part.' "Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist to prune the branches of the conifer and privets that are touching the applicant's garage and shed to a minimum distance of 1m away from those structures. The Eucalypt...