Muscat v Kiang [2017] NSWLEC 1557

Muscat v Kiang [2017] NSWLEC 1557

The photographs, application material, arboricultural expertise and site inspection showed that the English Oak was in an advanced state of decline and posed a foreseeable risk of damage to the applicant's property, particularly the nearby studio, and of injury to persons on nearby properties. Because s 10(2) was met, the Court's jurisdiction was engaged and the only appropriate order was removal of the tree at the respondent's expense.

Jurisdiction
Australia
Judgment Date
05 October 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Final Orders
Outcome
Tree removal ordered.
Legal Topics
['potential Damage and Injury' 'dead or Declining Tree' 'tree Removal' 'notice Requirements']
['trees Disputes Between Neighbours' 'property Law'] ['potential Damage and Injury' 'dead or Declining Tree' 'tree Removal' 'notice Requirements']

Case Brief

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the English Oak was likely in the near future to cause damage to the applicant's property or likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the circumstances warranted expedition by varying the usual notice requirement under s 8(3) of the Trees (Disputes Between Neighbours) Act 2006.' 'What order should be made concerning removal of the tree.']

Ratio Decidendi

The photographs, application material, arboricultural expertise and site inspection showed that the English Oak was in an advanced state of decline and posed a foreseeable risk of damage to the applicant's property, particularly the nearby studio, and of injury to persons on nearby properties. Because s 10(2) was met, the Court's jurisdiction was engaged and the only appropriate order was removal of the tree at the respondent's expense.

Court Disposition

Tree removal ordered.

Orders

  • ['The respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3, and with appropriate insurance cover, to remove the English Oak to ground level. The work is to be completed within 30 days of the date of these orders.' 'The work in (1) is to be carried out in...