Kentish v Maurer & anor [2015] NSWLEC 1393

Kentish v Maurer & anor [2015] NSWLEC 1393

The facts did not establish that the maintenance required by the trees was unreasonable or that the trees posed a significant risk of damage or injury, apart from the proximity of branches from Tree 1 to the applicant’s rooftop antenna, which posed a real risk of damage. Therefore, only limited pruning orders were warranted rather than removal.

Parties
Applicant: Paul Kentish; First Respondent: Kasey Maurer; Second Respondent: Glenn Davis
Jurisdiction
Australia
Judgment Date
23 September 2015
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application upheld in part: orders for pruning of Tree 1 made; no order for removal of trees.
Legal Topics
Tree Disputes, Neighbourhood Disputes, Damage to Property, Injury Risk, Tree Pruning Orders
Environmental Law Property Law Tree Disputes Neighbourhood Disputes Damage to Property Injury Risk Tree Pruning Orders

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Parties

Paul Kentish

Applicant

Kasey Maurer

First Respondent

Glenn Davis

Second Respondent

Procedural Posture

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

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 or injury to any person
  2. 2 Whether the level of maintenance caused by trees is unreasonable
  3. 3 Whether trees present a significant fire risk justifying orders for interference/removal

Ratio Decidendi

The facts did not establish that the maintenance required by the trees was unreasonable or that the trees posed a significant risk of damage or injury, apart from the proximity of branches from Tree 1 to the applicant’s rooftop antenna, which posed a real risk of damage. Therefore, only limited pruning orders were warranted rather than removal.

Court Disposition

Application upheld in part: orders for pruning of Tree 1 made; no order for removal of trees.

Orders

  • Within 30 days and then every two years, respondents must engage a qualified arborist to prune Tree 1 (Ironbark): remove all deadwood 25 mm diameter or greater over applicant's property and within 2 metres of the boundary; remove branches within 2 metres of rooftop antenna; reduce/remove hazardous branches...
  • Works to be done in accordance with AS4373 and WorkCover NSW Code of Practice for the Amenity Tree Industry.