Dara v Mayadunne [2019] NSWLEC 1217

Dara v Mayadunne [2019] NSWLEC 1217

The Court was satisfied that the trees contained deadwood overhanging parts of the applicant's house, driveway, front yard and nature strip, that branches had dropped fairly frequently, and that impact by such branches could have serious consequences, so the Act was engaged on risk of injury. However, Council's assessment, the Court's inspection and the Acting Commissioner's arboricultural expertise did not justify removal of either Sydney Blue Gum: Tree 2 appeared structurally sound and healthy, and Tree 1, although in reduced condition and needing monitoring, appeared structurally sound. The appropriate response was annual deadwood pruning and removal of the Monstera deliciosa from Tree...

Jurisdiction
Australia
Judgment Date
29 May 2019
Procedural Posture
Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application allowed in part; annual deadwood pruning and related works ordered, but tree removal was not ordered.
Legal Topics
['apprehension of Damage to Property' 'risk of Injury From Trees' 'tree Removal' 'deadwood Pruning' 'cost Sharing for Tree Works']
['trees Disputes Between Neighbours' 'land and Environment' 'property'] ['apprehension of Damage to Property' 'risk of Injury From Trees' 'tree Removal' 'deadwood Pruning' 'cost Sharing for Tree Works']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the two Eucalyptus saligna trees were 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 of either Sydney Blue Gum was justified.' 'What pruning, monitoring, access and cost-sharing orders should be made.']

Ratio Decidendi

The Court was satisfied that the trees contained deadwood overhanging parts of the applicant's house, driveway, front yard and nature strip, that branches had dropped fairly frequently, and that impact by such branches could have serious consequences, so the Act was engaged on risk of injury. However, Council's assessment, the Court's inspection and the Acting Commissioner's arboricultural expertise did not justify removal of either Sydney Blue Gum: Tree 2 appeared structurally sound and healthy, and Tree 1, although in reduced condition and needing monitoring, appeared structurally sound. The appropriate response was annual deadwood pruning and removal of the Monstera deliciosa from Tree...

Court Disposition

Application allowed in part; annual deadwood pruning and related works ordered, but tree removal was not ordered.

Orders

  • ["The canopies of the two Eucalyptus saligna (Sydney Blue Gum) trees overhanging the applicant's property, including the nature strip in front of his property, shall be pruned annually to remove all deadwood above 20mm diameter at the branch collar. This shall initially be completed within eight weeks of the date of...