Aubrey v Garside [2009] NSWLEC 1198

Aubrey v Garside [2009] NSWLEC 1198

The application was upheld in part because Trees 1, 4, 6, 7, 8 and 9 satisfied the statutory tests in s 10(2) by presenting likely injury or likely near-future property damage, while Trees 2, 3 and 5 and the identified boundary vegetation and fallen debris did not. Shade or loss of sunshine was not damage to property under the Act. Orders were therefore confined to pruning dead wood from Trees 1, 8 and 9, removing Trees 4, 6 and 7, and access arrangements for that work.

Jurisdiction
Australia
Judgment Date
20 May 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment and Final Orders
Outcome
Application upheld in part; orders made by consent.
Legal Topics
['tree Removal and Pruning' 'risk of Injury' 'property Damage' 'bushfire Hazard' 'access to Light' 'costs']
['land and Environment' 'trees Disputes Between Neighbours'] ['tree Removal and Pruning' 'risk of Injury' 'property Damage' 'bushfire Hazard' 'access to Light' 'costs']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment and Final Orders

Legal Issues

  1. 1 ["Whether each tree had caused, was causing, was likely in the near future to cause damage to the applicants' property, or was likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether overgrown and dead vegetation, including Oleander, Pencil Pine, Monstera and fallen debris, constituted a fire hazard satisfying s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether shade or loss of sunshine from trees could constitute damage to property under the Act.' 'Whether legal costs could be ordered by the Acting Commissioner.']

Ratio Decidendi

The application was upheld in part because Trees 1, 4, 6, 7, 8 and 9 satisfied the statutory tests in s 10(2) by presenting likely injury or likely near-future property damage, while Trees 2, 3 and 5 and the identified boundary vegetation and fallen debris did not. Shade or loss of sunshine was not damage to property under the Act. Orders were therefore confined to pruning dead wood from Trees 1, 8 and 9, removing Trees 4, 6 and 7, and access arrangements for that work.

Court Disposition

Application upheld in part; orders made by consent.

Orders

  • ["Tree 1, Scribbly Gum; Tree 8, Grey Gum; and Tree 9, Scribbly Gum shall be pruned to remove all dead wood that has diameter greater than 25 mm and/or length greater than 1m. The pruning shall be completed by 30 November 2009. Each tree shall be similarly pruned at periods of not more than 5 years thereafter, for so...