Kwan v Wilbraham [2024] NSWLEC 1581

Kwan v Wilbraham [2024] NSWLEC 1581

The evidence established that a large branch from T1 caused minor damage to the applicant's property, engaging s 10(2)(a) of the Trees Act. However, risk of injury to persons was found to be low, and damage by T2 was unsubstantiated. Accordingly, orders to repair existing gutter damage and prune low branches of T1 are appropriate, but removal of the trees is disproportionate and unnecessary.

Parties
Applicant: Wai King Kwan; First Respondent: Blake Eric Wilbraham; Second Respondent: Abbey Rose Livingston
Jurisdiction
Australia
Judgment Date
23 September 2024
Procedural Posture
Trees (disputes Between Neighbours) Application / Final Judgment and Orders
Outcome
Orders made in favour of applicant in part
Legal Topics
Tree Disputes, Damage to Property, Apprehension of Injury, Jurisdiction Under Trees (disputes Between Neighbours) Act, Discretionary Considerations Under S 12
Environment and Planning Law Tree Disputes Damage to Property Apprehension of Injury Jurisdiction Under Trees (disputes Between Neighbours) Act Discretionary Considerations Under S 12

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Parties

Wai King Kwan

Applicant

Blake Eric Wilbraham

First Respondent

Abbey Rose Livingston

Second Respondent

Procedural Posture

Trees (disputes Between Neighbours) Application / Final Judgment and Orders

Legal Issues

  1. 1 Whether respondent's trees caused or are likely to cause damage to applicant's property
  2. 2 Whether respondent's trees are likely to cause injury to any person
  3. 3 Appropriate orders to remedy or prevent damage or injury under Trees (Disputes Between Neighbours) Act 2006

Ratio Decidendi

The evidence established that a large branch from T1 caused minor damage to the applicant's property, engaging s 10(2)(a) of the Trees Act. However, risk of injury to persons was found to be low, and damage by T2 was unsubstantiated. Accordingly, orders to repair existing gutter damage and prune low branches of T1 are appropriate, but removal of the trees is disproportionate and unnecessary.

Court Disposition

Orders made in favour of applicant in part

Orders

  • The respondents, at their expense, shall employ a roofing contractor with public liability insurance of at least $10,000,000.00 to supply and fit two new gutter clips and refit one existing gutter clip to the applicant's side gutter, or Mr Wilbraham may undertake these works if he meets the insurance requirements...
  • The respondents, at their expense, shall engage AQF level 3 arborists to prune the two lowest branches from T1 growing towards Ms Kwan's side neighbour's land, to their branch collars.