Ludevig & Cramer v Howard [2008] NSWLEC 1340

Ludevig & Cramer v Howard [2008] NSWLEC 1340

Damage to property had occurred from falling branch, satisfying s 10(2); risk of future injury from deadwood gave further basis under s 10(2). However, removal or excessive pruning was not justified given the intrinsic cultural and environmental value of the trees, and the respondents' willingness to carry out pruning and obtain a stability assessment sufficed to address the risks.

Parties
Applicant: Sabine Ludevig; Applicant: Daniel Cramer; Respondent: Robyn Howard; Respondent: Ken Howard
Jurisdiction
Australia
Judgment Date
12 August 2008
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application upheld in part; orders for pruning and stability assessment, but removal/refusal for major works.
Legal Topics
Tree Disputes, Neighbourhood Disputes, Damage to Property, Risk of Injury
Environmental Law Property Law Tree Disputes Neighbourhood Disputes Damage to Property Risk of Injury

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Parties

Sabine Ludevig

Applicant

Daniel Cramer

Applicant

Robyn Howard

Respondent

Ken Howard

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether trees caused or are likely to cause damage to property or injury to persons under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether removal or pruning of trees is warranted
  3. 3 Consideration of cultural, landscape, and ecological value of trees

Ratio Decidendi

Damage to property had occurred from falling branch, satisfying s 10(2); risk of future injury from deadwood gave further basis under s 10(2). However, removal or excessive pruning was not justified given the intrinsic cultural and environmental value of the trees, and the respondents' willingness to carry out pruning and obtain a stability assessment sufficed to address the risks.

Court Disposition

Application upheld in part; orders for pruning and stability assessment, but removal/refusal for major works.

Orders

  • Howards to prune all dead wood over 20mm from both trees and the identified crossing branch from Blackbutt by 31 October 2008 at their cost.
  • All pruning to be performed by an arborist with AQF Level 3 qualifications and in accordance with AS 4373 2007.