Khan v Saleeby [2009] NSWLEC 1048

Khan v Saleeby [2009] NSWLEC 1048

The tree posed a significant risk of injury and had already caused damage to the applicant's property, thus meeting the statutory tests under s 10(2) of the Act, and the court ordered its removal. The applicant was ordered to contribute to the costs, but only a quarter, reduced further in light of other factors contributing to the tree's decline and prior payments.

Parties
Applicant: Sultan Khan; Respondent: Adrian Saleeby
Jurisdiction
Australia
Judgment Date
29 January 2009
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment After Hearing
Outcome
application upheld; orders made for removal of the tree and for cost apportionment
Legal Topics
Tree Disputes, Removal of Hazardous Trees, Cost Apportionment Between Neighbours
Environmental Law Property Law Tree Disputes Removal of Hazardous Trees Cost Apportionment Between Neighbours

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Parties

Sultan Khan

Applicant

Adrian Saleeby

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment After Hearing

Legal Issues

  1. 1 Whether the Ironbark tree posed a risk of damage or injury as defined by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the applicant is entitled to orders for the removal and disposal of the tree
  3. 3 How the costs of removal should be apportioned between the parties

Ratio Decidendi

The tree posed a significant risk of injury and had already caused damage to the applicant's property, thus meeting the statutory tests under s 10(2) of the Act, and the court ordered its removal. The applicant was ordered to contribute to the costs, but only a quarter, reduced further in light of other factors contributing to the tree's decline and prior payments.

Court Disposition

application upheld; orders made for removal of the tree and for cost apportionment

Orders

  • The Ironbark tree in the south-eastern corner of 33 Adella Avenue, Blacktown shall be cut down by 30 April 2009.
  • Mr Saleeby to pay the full cost of removal to the contractor.