Walls V Ponsford [2010] NSWLEC 1031

Walls V Ponsford [2010] NSWLEC 1031

The tree contained a substantial amount of dead wood that posed a risk of damage to property in the near future and could cause injury to persons, but the risk of injury or damage from failure of living parts of the tree was low and did not justify removal. The appropriate order was removal of dead wood rather than removal of the tree.

Jurisdiction
Australia
Judgment Date
16 February 2010
Procedural Posture
Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment
Outcome
Application to remove the tree dismissed; pruning orders made.
Legal Topics
['damage to Property' 'risk of Injury to Persons' 'tree Pruning' 'tree Removal']
['trees Disputes' 'land and Environment'] ['damage to Property' 'risk of Injury to Persons' 'tree Pruning' 'tree Removal']

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Procedural Posture

Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment

Legal Issues

  1. 1 ["Whether the respondent's tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property." "Whether the respondent's tree is a risk of injury to persons." 'Whether removal of the tree should be ordered or whether pruning of dead wood is sufficient.']

Ratio Decidendi

The tree contained a substantial amount of dead wood that posed a risk of damage to property in the near future and could cause injury to persons, but the risk of injury or damage from failure of living parts of the tree was low and did not justify removal. The appropriate order was removal of dead wood rather than removal of the tree.

Court Disposition

Application to remove the tree dismissed; pruning orders made.

Orders

  • ['The application to remove the tree is dismissed.' 'The respondent shall engage and pay for an AQF level 3 arborist with current and appropriate insurances to remove all dead wood from the tree greater than or equal to 30mm in diameter, including the dead stubs.' 'The work is to be carried out in accordance with...