Daniels v Wyner & anor [2015] NSWLEC 1250

Daniels v Wyner & anor [2015] NSWLEC 1250

While the Liquidamber tree has not been shown to cause actionable damage to the applicant's sewer pipes, garage, or retaining walls, and leaf litter is not an adequate ground for intervention, the Court was independently satisfied that a hazardous fork in the southern stem of the tree is likely to fail and thereby cause significant damage. Orders are therefore made to prune and cable the tree to reduce the risk of limb failure but not for removal or compensation.

Parties
Applicant: Peter Daniels; First Respondent: Paul Wyner; Second Respondent: Martine Wyner
Jurisdiction
Australia
Judgment Date
08 July 2015
Procedural Posture
Tree Dispute (class 2) / Judgment and Orders
Outcome
Application upheld. Orders made for pruning and cabling the tree, not for removal or compensation.
Legal Topics
Neighbour Disputes, Damage by Trees, Remedial Orders, Orders for Pruning and Cabling
Property Law Environmental Law Neighbour Disputes Damage by Trees Remedial Orders Orders for Pruning and Cabling

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Parties

Peter Daniels

Applicant

Paul Wyner

First Respondent

Martine Wyner

Second Respondent

Procedural Posture

Tree Dispute (class 2) / Judgment and Orders

Legal Issues

  1. 1 Whether the respondents' tree has caused or is likely to cause damage to the applicant's property
  2. 2 Whether the applicant is entitled to orders for removal of the tree or compensation for alleged damage

Ratio Decidendi

While the Liquidamber tree has not been shown to cause actionable damage to the applicant's sewer pipes, garage, or retaining walls, and leaf litter is not an adequate ground for intervention, the Court was independently satisfied that a hazardous fork in the southern stem of the tree is likely to fail and thereby cause significant damage. Orders are therefore made to prune and cable the tree to reduce the risk of limb failure but not for removal or compensation.

Court Disposition

Application upheld. Orders made for pruning and cabling the tree, not for removal or compensation.

Orders

  • The respondents must, within 30 days, engage and pay a suitably qualified arborist (minimum AQF level 3, experienced in tree cabling, with insurance) to: (a) Install a cable between the two southern limbs to limit their range of movement and prevent fork failure; (b) Prune the southern side of the tree's crown to...
  • All pruning must conform to AS4373 and the WorkCover Code of Practice for the Amenity Tree Industry.