Grosvenor & anor v The Owners Strata Plan No 85601 [2014] NSWLEC 1093

Grosvenor & anor v The Owners Strata Plan No 85601 [2014] NSWLEC 1093

Although the risk of sudden live limb failure was low and radical pruning to the boundary was not justified, s 10(2) was satisfied because live branches from Trees 2 or 4 had fallen and caused damage and all four trees could in the near future cause damage or injury through falling dead wood. Considering the amenity, ecological value, and health of the trees under s 12, the appropriate orders were limited pruning, dead wood removal, and removal or reduction of specified branches rather than the extensive pruning sought.

Jurisdiction
Australia
Judgment Date
22 May 2014
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application upheld in part.
Legal Topics
['damage to Property From Trees' 'potential Injury From Trees' 'pruning Orders' 'dead Wood Removal']
['trees Disputes' 'neighbour Law' 'land and Environment'] ['damage to Property From Trees' 'potential Injury From Trees' 'pruning Orders' 'dead Wood Removal']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the four trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property or were likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Court should order pruning back to the common boundary or more limited pruning and dead wood removal.' 'What discretionary matters under s 12 of the Trees (Disputes Between Neighbours) Act 2006 affected the orders to be made.']

Ratio Decidendi

Although the risk of sudden live limb failure was low and radical pruning to the boundary was not justified, s 10(2) was satisfied because live branches from Trees 2 or 4 had fallen and caused damage and all four trees could in the near future cause damage or injury through falling dead wood. Considering the amenity, ecological value, and health of the trees under s 12, the appropriate orders were limited pruning, dead wood removal, and removal or reduction of specified branches rather than the extensive pruning sought.

Court Disposition

Application upheld in part.

Orders

  • ["Within 30 days, the respondent is to engage and pay for a suitably experienced AQF level 3 arborist with proof of appropriate insurance cover to remove all dead wood down to 40mm in diameter from all parts of Trees 1, 2, 3 and 4 that overhang the applicants' property to a distance of 3m inside the respondent's...