English v Dagg & anor [2015] NSWLEC 1392

English v Dagg & anor [2015] NSWLEC 1392

Each of the three trees satisfied the jurisdictional test in s 10(2) because they were likely to cause damage to the applicant's property in the near future or likely to cause injury to a person. Given the observed structural defects, decay, wounds and risk of failure, and because pruning was not a viable alternative, orders for removal of the three trees and replacement planting were appropriate.

Jurisdiction
Australia
Judgment Date
23 September 2015
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Application Upheld
Outcome
The application is upheld.
Legal Topics
['damage to Property From Trees' 'likelihood of Injury From Trees' 'orders for Tree Removal' 'replacement Planting']
['trees Disputes Between Neighbours' 'property' 'environment and Planning'] ['damage to Property From Trees' 'likelihood of Injury From Trees' 'orders for Tree Removal' 'replacement Planting']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Application Upheld

Legal Issues

  1. 1 ["Whether each of the three trees had caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made under s 9 of the Trees (Disputes Between Neighbours) Act 2006 to remedy, restrain or prevent damage to property or prevent injury.' 'Whether tree removal was required or whether alternatives such as pruning were suitable.']

Ratio Decidendi

Each of the three trees satisfied the jurisdictional test in s 10(2) because they were likely to cause damage to the applicant's property in the near future or likely to cause injury to a person. Given the observed structural defects, decay, wounds and risk of failure, and because pruning was not a viable alternative, orders for removal of the three trees and replacement planting were appropriate.

Court Disposition

The application is upheld.

Orders

  • ['Within 90 days of the date of these orders the respondents are to engage a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 1, Tree 2 and Tree 3. The three trees are to be removed to 4 metres above ground level or lower, with herbicide applied to the...