Garraway v Prentice [2011] NSWLEC 1025

Garraway v Prentice [2011] NSWLEC 1025

The trees have caused, and are likely in the near future, to cause damage to the applicant's property and are likely to cause injury to persons, satisfying s 10(2) of the Act. However, removal is refused as their ongoing amenity, ecological value, and other factors under s 12 of the Act outweigh the risk, provided deadwood is pruned regularly.

Jurisdiction
Australia
Judgment Date
10 January 2011
Procedural Posture
Trees (disputes Between Neighbours) Act 2006 Application / Principal Judgment
Outcome
Application to remove trees refused; pruning and maintenance order made
Legal Topics
['tree Disputes Between Neighbours' 'damage Caused by Trees' 'pruning of Amenity Trees']
['environmental Law' 'property Law'] ['tree Disputes Between Neighbours' 'damage Caused by Trees' 'pruning of Amenity Trees']

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Procedural Posture

Trees (disputes Between Neighbours) Act 2006 Application / Principal Judgment

Legal Issues

  1. 1 ["Whether two Sydney Bluegum (Eucalyptus saligna) trees on the respondent's property should be removed or pruned due to causing or likely to cause damage or injury" 'Whether the requirements of s 10 of the Trees (Disputes Between Neighbours) Act 2006 are satisfied']

Ratio Decidendi

The trees have caused, and are likely in the near future, to cause damage to the applicant's property and are likely to cause injury to persons, satisfying s 10(2) of the Act. However, removal is refused as their ongoing amenity, ecological value, and other factors under s 12 of the Act outweigh the risk, provided deadwood is pruned regularly.

Court Disposition

Application to remove trees refused; pruning and maintenance order made

Orders

  • ['The application to remove the trees is refused.' "The respondent is to engage and pay for an AQF level 3 arborist with appropriate insurances, to remove all dead wood down to a basal diameter of 25mm from the two Sydney Bluegum (Eucalyptus saligna) trees situated close to the northern boundary and aligned...