Wheeler v McDonald [2007] NSWLEC 383

Wheeler v McDonald [2007] NSWLEC 383

The Spotted Gum was in good condition and did not present an unreasonable risk from normal dead wood, nor was the fence displacement or alleged garage floor issue shown to be caused by the tree or likely to cause significant damage in the near future. However, a lower overhanging branch with a visible scar and reactive wood warranted pruning to avoid possible damage, and dead wood overhanging No. 30 First Avenue should also be removed within 12 months.

Jurisdiction
Australia
Judgment Date
18 June 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (dispute Between Neighbours) Act 2006 Concerning a Tree on Neighbouring Property / Ex Tempore Judgment After Hearing
Outcome
Application partly granted; pruning order made, with no orders in respect of the fence.
Legal Topics
['potential Damage to Property' 'injury to Persons' 'overhanging Branches' 'fence Alignment' 'tree Pruning']
['trees (neighbours)' 'property Law'] ['potential Damage to Property' 'injury to Persons' 'overhanging Branches' 'fence Alignment' 'tree Pruning']

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Procedural Posture

Application Pursuant to S 7 of the Trees (dispute Between Neighbours) Act 2006 Concerning a Tree on Neighbouring Property / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Spotted Gum had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the Spotted Gum was likely to cause injury to any person.' 'Whether overhanging branches should be pruned to avoid damage to the shed or possible injury.' 'Whether fence realignment or compensation should be ordered because of alleged tree movement.' 'Whether alleged root damage to the garage floor was likely to cause significant damage in the near future.']

Ratio Decidendi

The Spotted Gum was in good condition and did not present an unreasonable risk from normal dead wood, nor was the fence displacement or alleged garage floor issue shown to be caused by the tree or likely to cause significant damage in the near future. However, a lower overhanging branch with a visible scar and reactive wood warranted pruning to avoid possible damage, and dead wood overhanging No. 30 First Avenue should also be removed within 12 months.

Court Disposition

Application partly granted; pruning order made, with no orders in respect of the fence.

Orders

  • ["The overhanging branch of the Spotted Gum shown in Attachment 'A' be pruned near the fork at point AB (refer Attachment 'B'), within a period of 12 months." 'The dead wood overhanging No. 30 First Avenue be removed within the 12 months period.']