Gallagher and Heycott v Kylor Pty Ltd [2009] NSWLEC 1003

Gallagher and Heycott v Kylor Pty Ltd [2009] NSWLEC 1003

The five large Bangalay Gums contained deadwood that had caused damage or was likely to cause future property damage or injury, satisfying the relevant tests in s 10(2)(a) or s 10(2)(b), but their trunks and stability did not justify removal. Pruning deadwood was therefore the appropriate order. The remaining saplings did not meet the statutory tests and no orders could be made for them. Compensation for the car damage was warranted because the applicants had given adequate notice of likely damage from the trees, and a reasonable person would have recognised that the dead branch that fell from Tree 2 was likely to fail and cause damage due to its size, condition and location over the...

Jurisdiction
Australia
Judgment Date
09 January 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 to Rectify or Prevent Property Damage and Obtain Compensation for Damage to a Car / Judgment After on Site Hearing; Application Upheld in Part
Outcome
Application upheld in part.
Legal Topics
['deadwood Pruning' 'damage Caused by Tree Branches' 'risk of Future Property Damage' 'risk of Injury From Trees' 'compensation for Vehicle Damage']
['trees and Neighbours' 'property Damage' 'compensation'] ['deadwood Pruning' 'damage Caused by Tree Branches' 'risk of Future Property Damage' 'risk of Injury From Trees' 'compensation for Vehicle Damage']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 to Rectify or Prevent Property Damage and Obtain Compensation for Damage to a Car / Judgment After on Site Hearing; Application Upheld in Part

Legal Issues

  1. 1 ['Whether each tree satisfied one or more of the tests in s 10(2)(a) or s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether orders should be made for removal of the five large trees or pruning of deadwood from them.' 'Whether orders should be made regarding the eucalyptus saplings.' "Whether Kylor Pty Ltd should pay compensation for repair of damage to Michelle Heycott's Mazda Tribute car."]

Ratio Decidendi

The five large Bangalay Gums contained deadwood that had caused damage or was likely to cause future property damage or injury, satisfying the relevant tests in s 10(2)(a) or s 10(2)(b), but their trunks and stability did not justify removal. Pruning deadwood was therefore the appropriate order. The remaining saplings did not meet the statutory tests and no orders could be made for them. Compensation for the car damage was warranted because the applicants had given adequate notice of likely damage from the trees, and a reasonable person would have recognised that the dead branch that fell from Tree 2 was likely to fail and cause damage due to its size, condition and location over the...

Court Disposition

Application upheld in part.

Orders

  • ['All dead wood having a diameter greater than 20 mm at its point of attachment shall be pruned from the five large trees by 28 February 2009, and at periods of no more than five years thereafter.' 'Kylor Pty Ltd shall pay the full cost of the pruning work.' 'The pruning shall be carried out by an AQF Level 3...