SGCH – St George Community Housing v Moffitt [2019] NSWLEC 1621

SGCH – St George Community Housing v Moffitt [2019] NSWLEC 1621

The applicant's actions contributed to damage and risk from the tree, so although the Court is satisfied that the tree has caused or is likely to cause damage, and orders for pruning are warranted, the applicant is to pay for the first pruning to address immediate risk, and respondents for subsequent maintenance, as apportionment reflects their respective contributions.

Parties
Applicant: SGCH – St George Community Housing; First Respondent: Dannielle Moffitt; Second Respondent: Jeff Moffitt
Jurisdiction
Australia
Judgment Date
03 December 2019
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment, Orders on Amended Application
Outcome
Orders made for pruning the tree with apportionment of costs between the parties.
Legal Topics
Trees – Disputes Between Neighbours, Damage From Trees, Pruning Orders, Apportionment of Costs, Tree Protection During Development
Property Law Environmental Law Tort Trees – Disputes Between Neighbours Damage From Trees Pruning Orders Apportionment of Costs Tree Protection During Development

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Parties

SGCH – St George Community Housing

Applicant

Dannielle Moffitt

First Respondent

Jeff Moffitt

Second Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment, Orders on Amended Application

Legal Issues

  1. 1 Whether the applicant's actions contributed to the risk of damage or injury from the tree
  2. 2 Who should pay for pruning and maintenance of the tree
  3. 3 Appropriate orders for managing risk and preventing damage

Ratio Decidendi

The applicant's actions contributed to damage and risk from the tree, so although the Court is satisfied that the tree has caused or is likely to cause damage, and orders for pruning are warranted, the applicant is to pay for the first pruning to address immediate risk, and respondents for subsequent maintenance, as apportionment reflects their respective contributions.

Court Disposition

Orders made for pruning the tree with apportionment of costs between the parties.

Orders

  • Within 60 days, applicant is to engage and pay for arborist to prune the tree (remove deadwood >30 mm diameter, prune broken or damaged branches, reduce crown above applicant's property by up to 10%).
  • All pruning works must comply with AS4373:2007 and the 2016 Safe Work Australia Guide.