Fraser v Fitzhenry [2011] NSWLEC 1214

Fraser v Fitzhenry [2011] NSWLEC 1214

The Court preferred Mr Kokot's evidence and its own observations of splitting and fractures in the excessively leaning trunk and branches over the respondent's arborists' largely unsubstantiated opinions. It was satisfied that the tree was at increasing risk of failure, was likely in the near future to cause damage to the applicant's property, and was likely to cause injury to persons. Pruning would weaken the tree and increase the risk of injury, so removal at the respondent's expense was appropriate.

Jurisdiction
Australia
Judgment Date
05 July 2011
Procedural Posture
Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
Application to remove the tree upheld.
Legal Topics
['trees Between Neighbours' 'damage to Property' 'risk of Injury to Persons' 'tree Removal' 'expert Arborist Evidence']
['land and Environment' 'neighbour Disputes'] ['trees Between Neighbours' 'damage to Property' 'risk of Injury to Persons' 'tree Removal' 'expert Arborist Evidence']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether the respondent's Casuarina tree was likely in the near future to cause damage to the applicant's property or likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether removal, rather than pruning, was the appropriate order in light of the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The Court preferred Mr Kokot's evidence and its own observations of splitting and fractures in the excessively leaning trunk and branches over the respondent's arborists' largely unsubstantiated opinions. It was satisfied that the tree was at increasing risk of failure, was likely in the near future to cause damage to the applicant's property, and was likely to cause injury to persons. Pruning would weaken the tree and increase the risk of injury, so removal at the respondent's expense was appropriate.

Court Disposition

Application to remove the tree upheld.

Orders

  • ['The application to remove the tree is upheld.' 'The respondent is to engage and pay for an AQF level 3 arborist with the necessary insurances, to remove the Casuarina tree to a maximum stump height above ground of 500mm.' 'The work in order (2) is to be completed within 30 days of the date of these orders.' "To...