Phan v Wear [2008] NSWLEC 1450

Phan v Wear [2008] NSWLEC 1450

The Court found there has been no damage to the applicant's property nor injury to persons, but a section of tree 2 could in the near future cause some damage. Thus, the jurisdiction of the Court was triggered under s 10(2), leading to an order for partial removal and deadwood pruning only.

Jurisdiction
Australia
Judgment Date
31 October 2008
Procedural Posture
Tree Dispute Application / Judgment
Outcome
Application upheld in part
Legal Topics
['tree Disputes' 'neighbourhood Disputes' 'remedies for Tree Related Issues']
['property Law' 'environmental Law'] ['tree Disputes' 'neighbourhood Disputes' 'remedies for Tree Related Issues']

Case Brief

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Procedural Posture

Tree Dispute Application / Judgment

Legal Issues

  1. 1 ["Whether the trees on the respondent's property pose a risk of damage to the applicant's property or injury to persons" 'Whether removal or pruning of the trees is warranted under the Trees (Disputes Between Neighbours) Act 2006']

Ratio Decidendi

The Court found there has been no damage to the applicant's property nor injury to persons, but a section of tree 2 could in the near future cause some damage. Thus, the jurisdiction of the Court was triggered under s 10(2), leading to an order for partial removal and deadwood pruning only.

Court Disposition

Application upheld in part

Orders

  • ['Section of tree 2 most likely to fail to be removed to point indicated on photograph' 'Work to be carried out by AQF level III arborist with appropriate insurance and per WorkCover NSW Code of Practice' 'Respondent to pay wholly for removal from tree 2' "Deadwood down to 30 mm in diameter to be removed from tree...