Brady v Shashoua [2007] NSWLEC 203

Brady v Shashoua [2007] NSWLEC 203

After inspection and consideration of the material, the Court was not satisfied that the general safety of the tree justified removal of the tree in its entirety under s 10(2). However, one minor limb presented an unacceptable risk of failure and warranted removal, while two other identified limb areas could not be assessed without aerial inspection and therefore required inspection, reporting and implementation of any recommended pruning.

Jurisdiction
Australia
Judgment Date
11 April 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Sydney Red Gum Located on Neighbouring Property / Ex Tempore Judgment Making Formal Orders Pursuant to S 9 of the Trees (disputes Between Neighbours) Act 2006
Outcome
Application partly granted; removal of the whole tree refused, but orders made for removal of one branch structure, arborist inspection and reporting, and implementation of any recommended pruning.
Legal Topics
['neighbouring Trees' 'risk of Tree or Limb Failure' 'property Damage' 'tree Removal' 'pruning' 'arborist Inspection and Report']
['trees (disputes Between Neighbours)' 'land and Environment'] ['neighbouring Trees' 'risk of Tree or Limb Failure' 'property Damage' 'tree Removal' 'pruning' 'arborist Inspection and Report']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Sydney Red Gum Located on Neighbouring Property / Ex Tempore Judgment Making Formal Orders Pursuant to S 9 of the Trees (disputes Between Neighbours) Act 2006

Legal Issues

  1. 1 ["Whether the Sydney Red Gum had caused, was causing or was likely in the near future to cause damage to the applicant's property or injury to any person." 'Whether the tree should be removed in its entirety.' 'Whether particular limbs or branch structures should be removed, inspected, reported on or pruned.']

Ratio Decidendi

After inspection and consideration of the material, the Court was not satisfied that the general safety of the tree justified removal of the tree in its entirety under s 10(2). However, one minor limb presented an unacceptable risk of failure and warranted removal, while two other identified limb areas could not be assessed without aerial inspection and therefore required inspection, reporting and implementation of any recommended pruning.

Court Disposition

Application partly granted; removal of the whole tree refused, but orders made for removal of one branch structure, arborist inspection and reporting, and implementation of any recommended pruning.

Orders

  • ['The single branch structure marked and identified in Annexure A is to be removed.' 'An arborist is to be appointed to implement order 1 and to inspect and advise the parties on the safety and stability of the red strained sub-trunk from the point of that staining to the tip of that branch structure as marked and...