Rawlings v Marshall [2021] NSWLEC 1268

Rawlings v Marshall [2021] NSWLEC 1268

The Swamp Mahogany had caused severe damage to Mrs Rawlings' garage and had other poorly attached branches likely to fail in the foreseeable future; pruning sufficient to mitigate the risk would remove more than half the crown and would not accord with AS 4373-2007, so removal was required. Compensation was refused because Mr Marshall did not plant the tree, did not increase the likelihood of branch failure, had no reason as a non-arborist to identify the structural defects in an apparently healthy tree, and did not adopt and knowingly continue a nuisance.

Jurisdiction
Australia
Judgment Date
11 May 2021
Procedural Posture
Class 2 Trees Dispute Application / Orders After Onsite Hearing
Outcome
Application for tree removal granted; application for compensation refused.
Legal Topics
['tree Removal' 'compensation for Tree Damage' 'reasonable Efforts to Reach Agreement' 'risk of Damage or Injury From Tree Failure']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment Court Proceedings'] ['tree Removal' 'compensation for Tree Damage' 'reasonable Efforts to Reach Agreement' 'risk of Damage or Injury From Tree Failure']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Trees Dispute Application / Orders After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicant made reasonable effort to reach agreement with the tree owner before orders were made under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the tree caused, is causing, or is likely in the near future to cause damage to the applicant's property or injury to any person." 'Whether removal of the Swamp Mahogany was required to prevent further damage.' "Whether the respondent should pay compensation for the applicant's garage damage."]

Ratio Decidendi

The Swamp Mahogany had caused severe damage to Mrs Rawlings' garage and had other poorly attached branches likely to fail in the foreseeable future; pruning sufficient to mitigate the risk would remove more than half the crown and would not accord with AS 4373-2007, so removal was required. Compensation was refused because Mr Marshall did not plant the tree, did not increase the likelihood of branch failure, had no reason as a non-arborist to identify the structural defects in an apparently healthy tree, and did not adopt and knowingly continue a nuisance.

Court Disposition

Application for tree removal granted; application for compensation refused.

Orders

  • ['The application for tree removal is granted.' "Within 30 days of the date of these orders, or otherwise as soon as it is possible to safely carry out the works considering the nearby damaged asbestos, the respondent is to remove the Swamp Mahogany in the rear garden of his property to no more than 500 mm above...