Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420

Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420

There is insufficient evidence to order removal of the tree as the whole is unlikely to fail, but risk of injury from falling dead fronds overhanging a main pedestrian entrance satisfies s 10(2), justifying orders for removal of dead fronds instead of the whole tree.

Parties
Applicant: Wazrin Pty Ltd; Respondent: Stuart Pearson
Jurisdiction
Australia
Judgment Date
11 December 2009
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing
Outcome
Partially granted: tree removal refused; specific remediation ordered.
Legal Topics
Tree Disputes, Damage to Property, Personal Injury Risk
Environmental Law Neighbour Disputes Tree Disputes Damage to Property Personal Injury Risk

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Parties

Wazrin Pty Ltd

Applicant

Stuart Pearson

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 Whether the palm tree has caused or is likely to cause damage to property or risk of injury to persons under s 10(2) of the Act.
  2. 2 Whether the tree should be removed due to damage or risk of injury.
  3. 3 Whether the Court has jurisdiction given the uncertainty of ownership of the retaining wall.

Ratio Decidendi

There is insufficient evidence to order removal of the tree as the whole is unlikely to fail, but risk of injury from falling dead fronds overhanging a main pedestrian entrance satisfies s 10(2), justifying orders for removal of dead fronds instead of the whole tree.

Court Disposition

Partially granted: tree removal refused; specific remediation ordered.

Orders

  • Application to remove the tree is dismissed.
  • Respondent to engage and pay for AQF 3 level arborist to remove dead fronds from the palm, in accordance with AS4373:2007, within 30 days and then annually.