Gillies v Locking [2010] NSWLEC 1171

Gillies v Locking [2010] NSWLEC 1171

There was no evidence linking the minor paving displacement or fence condition to the tree, so the damage test under s 10(2) was not satisfied. However, the tree was in advanced decline, with extensive dead wood overhanging areas on both properties likely to be frequently used by people, creating a risk that falling dead wood could injure a person. That enlivened the Court's jurisdiction, and removal of dead wood alone was impractical and probably more expensive, so removal of the tree was ordered.

Jurisdiction
Australia
Judgment Date
06 July 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment
Outcome
Application to remove the tree upheld; compensation claim dismissed.
Legal Topics
['damage to Property' 'injury to Persons' 'tree Removal']
['trees (neighbours)' 'property'] ['damage to Property' 'injury to Persons' 'tree Removal']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the tree has caused, is causing or could in the near future cause damage to the applicant's property." 'Whether the tree could cause injury to any person.' 'Whether removal of the tree, rather than removal of dead wood, should be ordered.' "Whether the applicant's claim for $585 in compensation or costs could be awarded."]

Ratio Decidendi

There was no evidence linking the minor paving displacement or fence condition to the tree, so the damage test under s 10(2) was not satisfied. However, the tree was in advanced decline, with extensive dead wood overhanging areas on both properties likely to be frequently used by people, creating a risk that falling dead wood could injure a person. That enlivened the Court's jurisdiction, and removal of dead wood alone was impractical and probably more expensive, so removal of the tree was ordered.

Court Disposition

Application to remove the tree upheld; compensation claim dismissed.

Orders

  • ['The application to remove the tree is upheld.' 'The respondent is to engage and pay for an AQF level 3 arborist to remove the tree to ground level.' 'The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.' 'The work is to be completed within 90 days of...