Black v Johnson (No 2) [2007] NSWLEC 513

Black v Johnson (No 2) [2007] NSWLEC 513

The easternmost Spotted Gum had caused damage to Mr Black's roof by natural branch failure and presented a risk sufficient to justify removal under s 10(2), while there was no evidence that the other three trees had naturally detached branches or otherwise satisfied s 10(2)(a) or (b). Although the trees pre-existed the applicant's residence, the design and location of the residence did not justify making Mr Black responsible for removal, because even a plausible alternative design would likely have left a courtyard exposed to risk of injury from the tree.

Jurisdiction
Australia
Judgment Date
30 July 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment Following Hearing, With Formal Orders to Be Made After Respondent Opportunity to Respond
Outcome
Application proposed to be granted in part, with removal of the easternmost of the four trees and no intervention for the other three trees, subject to Mr Johnson being given an opportunity to respond to the proposed orders.
Legal Topics
['tree Disputes' 'neighbour Application' 'pre Existing Trees' 'property Damage From Trees' 'risk of Injury From Trees' 'responsibility for Tree Removal Costs']
['trees (neighbours)' 'land and Environment'] ['tree Disputes' 'neighbour Application' 'pre Existing Trees' 'property Damage From Trees' 'risk of Injury From Trees' 'responsibility for Tree Removal Costs']

Case Brief

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment Following Hearing, With Formal Orders to Be Made After Respondent Opportunity to Respond

Legal Issues

  1. 1 ["Whether any of the four tests in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 were satisfied for four Spotted Gums on the respondent's property." "Whether the easternmost tree had caused damage to the applicant's property and should be removed." 'Whether the other three trees warranted removal or intervention.' "Whether the fact that the applicant's residence was constructed after the trees were already significantly grown affected who should undertake or pay for removal."]

Ratio Decidendi

The easternmost Spotted Gum had caused damage to Mr Black's roof by natural branch failure and presented a risk sufficient to justify removal under s 10(2), while there was no evidence that the other three trees had naturally detached branches or otherwise satisfied s 10(2)(a) or (b). Although the trees pre-existed the applicant's residence, the design and location of the residence did not justify making Mr Black responsible for removal, because even a plausible alternative design would likely have left a courtyard exposed to risk of injury from the tree.

Court Disposition

Application proposed to be granted in part, with removal of the easternmost of the four trees and no intervention for the other three trees, subject to Mr Johnson being given an opportunity to respond to the proposed orders.

Orders

  • ['Formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 were to be made after the respondent had an opportunity to respond.' 'The easternmost of the four Spotted Gums was proposed to be removed.' 'Removal was proposed to be undertaken by an AQF level 3 qualified arborist with appropriate...