Mehta v Pursell [2019] NSWLEC 1649

Mehta v Pursell [2019] NSWLEC 1649

The Court's jurisdiction under Part 2 was enlivened for T1 because its poor basal structure made stem failure likely in the near future, with likely damage to the boundary fence and possible damage to the dwelling, and pruning could not sufficiently reduce the risk. The jurisdiction was also enlivened for T4 because its declining condition and large deadwood made large limb failure likely in the near future, with likely damage to the fence or injury, and pruning was not appropriate. The jurisdiction was not enlivened for T5 and T6 because they were in fair condition, had no major structural defects evident, and were unlikely to cause damage or injury in the near future. Part 2A did not...

Jurisdiction
Australia
Judgment Date
16 December 2019
Procedural Posture
Class 2 Application Under S 7 (part 2) and S 14 B (part 2 A) of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing and Teleconference
Outcome
Part 2 application allowed in part with orders for removal of T1 and T4; no orders made for T5 and T6; Part 2A application not applicable because the trees were not planted so as to form a hedge.
Legal Topics
['risk of Damage or Injury From Trees' 'tree Removal Orders' 'obstruction of Sunlight' 'whether Trees Are Planted So as to Form a Hedge' 'service of Application']
['trees Disputes Between Neighbours' 'land and Environment'] ['risk of Damage or Injury From Trees' 'tree Removal Orders' 'obstruction of Sunlight' 'whether Trees Are Planted So as to Form a Hedge' 'service of Application']

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Procedural Posture

Class 2 Application Under S 7 (part 2) and S 14 B (part 2 A) of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing and Teleconference

Legal Issues

  1. 1 ['Whether the application was served correctly when the respondent did not attend the onsite hearing.' "Whether trees T1, T4, T5 and T6 were likely in the near future to cause damage to the applicant's property or injury to any person." 'Whether tree removal or pruning was appropriate for T1 and T4.' 'Whether the trees formed a hedge so that Part 2A applied to the alleged obstruction of sunlight.']

Ratio Decidendi

The Court's jurisdiction under Part 2 was enlivened for T1 because its poor basal structure made stem failure likely in the near future, with likely damage to the boundary fence and possible damage to the dwelling, and pruning could not sufficiently reduce the risk. The jurisdiction was also enlivened for T4 because its declining condition and large deadwood made large limb failure likely in the near future, with likely damage to the fence or injury, and pruning was not appropriate. The jurisdiction was not enlivened for T5 and T6 because they were in fair condition, had no major structural defects evident, and were unlikely to cause damage or injury in the near future. Part 2A did not...

Court Disposition

Part 2 application allowed in part with orders for removal of T1 and T4; no orders made for T5 and T6; Part 2A application not applicable because the trees were not planted so as to form a hedge.

Orders

  • ['Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove all three stems of T1 (T1–T3 in the application) and T4 to no more than 50 cm above ground level.' 'The works ordered...