Heston v Morpeth & anor [2017] NSWLEC 1421

Heston v Morpeth & anor [2017] NSWLEC 1421

The Court was satisfied that the tests in s 10(2) were met because the tree overhung the applicant's backyard and structures, had a history of large branch failures including a large live structural branch that caused damage to the dividing fence, and presented risks of damage or injury. Although the tree contributed to biodiversity and amenity, reduction pruning was not feasible and the benefits did not outweigh the risks associated with the history of large branch failures, so removal was appropriate.

Jurisdiction
Australia
Judgment Date
08 August 2017
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Orders After on Site Hearing
Outcome
The application to remove the tree was granted.
Legal Topics
['damage to Property From Tree Branches' 'potential Injury From Tree' 'tree Removal' 'jurisdiction Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes' 'neighbour Disputes' 'land and Environment'] ['damage to Property From Tree Branches' 'potential Injury From Tree' 'tree Removal' 'jurisdiction Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Orders After on Site Hearing

Legal Issues

  1. 1 ["Whether the Eucalypt has caused, is causing, or is likely in the near future to cause damage to the applicant's property." 'Whether the Eucalypt is likely to cause injury to any person.' 'Whether removal of the tree should be ordered after considering the relevant matters under s 12 of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The Court was satisfied that the tests in s 10(2) were met because the tree overhung the applicant's backyard and structures, had a history of large branch failures including a large live structural branch that caused damage to the dividing fence, and presented risks of damage or injury. Although the tree contributed to biodiversity and amenity, reduction pruning was not feasible and the benefits did not outweigh the risks associated with the history of large branch failures, so removal was appropriate.

Court Disposition

The application to remove the tree was granted.

Orders

  • ['The application to remove the tree is granted.' 'Within 60 days of the date of these orders the respondents are to have engaged and paid for an arborist with a minimum qualification in Arboriculture of AQF level 3 and with appropriate insurance cover, to remove the Sydney Peppermint to a maximum height of 2m above...