Evans v McGreal [2017] NSWLEC 1104

Evans v McGreal [2017] NSWLEC 1104

Tree 1 had caused damage to the applicant's stormwater system and paving, and rectification would require removal of large woody roots close to the trunk, so removal and rectification orders were appropriate. Tree 2 roots contributed to dysfunction of the drain but the damage did not warrant removal; a stormwater connection contribution was appropriate. Tree 4 posed a foreseeable risk of failure and potential injury, satisfying s 10(2)(b), so removal was ordered. Trees 5 and 6 had dead branches capable of causing damage or injury, so deadwood removal was ordered. The evidence did not justify removal of Trees 2, 3, 5 or 6, orders for slab, pier, gutter or lawn damage, survey costs by a...

Jurisdiction
Australia
Judgment Date
28 February 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Orders
Outcome
Application allowed in part; orders made for removal of Trees 1 and 4, deadwood removal from Trees 5 and 6, stormwater and paving rectification contributions, and refusal of compensation and other requested relief.
Legal Topics
['neighbouring Trees' 'damage to Property' 'risk of Injury' 'tree Removal' 'stormwater and Paving Rectification' 'leaf Litter and Dead Wood']
['trees Disputes' 'property Law' 'land and Environment Court Jurisdiction'] ['neighbouring Trees' 'damage to Property' 'risk of Injury' 'tree Removal' 'stormwater and Paving Rectification' 'leaf Litter and Dead Wood']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Orders

Legal Issues

  1. 1 ["Whether each of the six Pinus elliottii trees had caused, was causing, or was likely in the near future to cause damage to the applicant's property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether any tree was likely to cause injury to any person within s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether removal, pruning, rectification works, reimbursement or compensation should be ordered.']

Ratio Decidendi

Tree 1 had caused damage to the applicant's stormwater system and paving, and rectification would require removal of large woody roots close to the trunk, so removal and rectification orders were appropriate. Tree 2 roots contributed to dysfunction of the drain but the damage did not warrant removal; a stormwater connection contribution was appropriate. Tree 4 posed a foreseeable risk of failure and potential injury, satisfying s 10(2)(b), so removal was ordered. Trees 5 and 6 had dead branches capable of causing damage or injury, so deadwood removal was ordered. The evidence did not justify removal of Trees 2, 3, 5 or 6, orders for slab, pier, gutter or lawn damage, survey costs by a...

Court Disposition

Application allowed in part; orders made for removal of Trees 1 and 4, deadwood removal from Trees 5 and 6, stormwater and paving rectification contributions, and refusal of compensation and other requested relief.

Orders

  • ['Within 60 days of the date of these orders, the respondents are to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3, and with appropriate insurance cover, to remove the Pine trees indicated as Tree1 and Tree 4 on the diagram in the application claim form, with the trees...