Fraus v Xu [2018] NSWLEC 1176

Fraus v Xu [2018] NSWLEC 1176

The Cypress tree was alive, appeared healthy, had no obvious evidence of uprooting risk, and did not warrant removal, but two southern leaders or branches of the Cypress tree satisfied s 10(2) as to risk of injury in the near future and should be removed. Three dead branches on Gum tree 1 also satisfied s 10(2) as to risk of injury in the near future, although the risk was fairly low, and should be pruned. Gum tree 2 was sufficiently distant from the applicant's property and no orders were appropriate for it.

Jurisdiction
Australia
Judgment Date
05 April 2018
Procedural Posture
Class 2 Tree Dispute Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Final Decision and Orders
Outcome
The appeal is upheld in part.
Legal Topics
['risk of Tree Failure' 'tree Pruning Orders' 'damage to Property' 'risk of Injury']
['land and Environment' 'trees Disputes Between Neighbours' 'property'] ['risk of Tree Failure' 'tree Pruning Orders' 'damage to Property' 'risk of Injury']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Tree Dispute Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Final Decision and Orders

Legal Issues

  1. 1 ["Whether the Cypress tree was likely in the near future to cause damage to the applicant's property or injury to any person by uprooting or branch failure." 'Whether dead branches on the Gum trees were likely in the near future to cause injury to any person.' 'Whether pruning or removal orders should be made under the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The Cypress tree was alive, appeared healthy, had no obvious evidence of uprooting risk, and did not warrant removal, but two southern leaders or branches of the Cypress tree satisfied s 10(2) as to risk of injury in the near future and should be removed. Three dead branches on Gum tree 1 also satisfied s 10(2) as to risk of injury in the near future, although the risk was fairly low, and should be pruned. Gum tree 2 was sufficiently distant from the applicant's property and no orders were appropriate for it.

Court Disposition

The appeal is upheld in part.

Orders

  • ['Prune the two leaders located on the southern side of the Cypress tree, one being dead and the second live but with an obvious indented wound, to the point of attachment with the main trunk approximately 2.5 metres above ground level.' 'Prune the three lowest dead branches on Gum tree 1 which grow towards and...