Franks v Banks [2017] NSWLEC 1010

Franks v Banks [2017] NSWLEC 1010

Trees 1 and 2 were dead, close enough for branches to fall onto the applicant's property, and could cause damage or injury within the usual timeframe, so s 10(2) was satisfied for those trees. Trees 3, 4 and 5 were of average health and condition but had dead branches overhanging the applicant's property of a size that could cause damage or injury, so orders for removal of dead branches were warranted. Tree 6 showed signs of partial wind-throw and root plate lifting near the applicant's shed, engaging the Court's jurisdiction and justifying removal to prevent future damage.

Jurisdiction
Australia
Judgment Date
13 January 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Orders
Outcome
Orders made for removal of Trees 1, 2 and 6 and pruning of dead wood from Trees 3, 4 and 5.
Legal Topics
['potential Property Damage From Trees' 'potential Injury From Trees' 'removal and Pruning of Trees' 'neighbouring Land']
['trees Disputes Between Neighbours' 'land and Environment'] ['potential Property Damage From Trees' 'potential Injury From Trees' 'removal and Pruning of Trees' 'neighbouring Land']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the trees have caused, are causing, or are likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the trees are likely to cause injury to any person under s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether orders should be made for removal or pruning of the six trees on the respondent's land."]

Ratio Decidendi

Trees 1 and 2 were dead, close enough for branches to fall onto the applicant's property, and could cause damage or injury within the usual timeframe, so s 10(2) was satisfied for those trees. Trees 3, 4 and 5 were of average health and condition but had dead branches overhanging the applicant's property of a size that could cause damage or injury, so orders for removal of dead branches were warranted. Tree 6 showed signs of partial wind-throw and root plate lifting near the applicant's shed, engaging the Court's jurisdiction and justifying removal to prevent future damage.

Court Disposition

Orders made for removal of Trees 1, 2 and 6 and pruning of dead wood from Trees 3, 4 and 5.

Orders

  • ['Within 60 days of the date of these orders, the respondent is to engage an arborist with a minimum AQF level 3 qualification in Arboriculture, and with appropriate insurance cover, to carry out work on the six trees shown on the plan in the application claim form in the north-western corner of 17 Dalley Street,...