Younis v Niccol [2019] NSWLEC 1441

Younis v Niccol [2019] NSWLEC 1441

There was a risk of further limb failures in the near future above the applicant's property that might cause damage or injury, but Mr Draper's evidence established that pruning could minimise the risk sufficiently while allowing retention of the tree; given the extent of past pruning and signs of stress, ongoing monitoring and periodic removal of hazardous deadwood or branches were required.

Jurisdiction
Australia
Judgment Date
12 September 2019
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) for Removal or Pruning of a Tree / Principal Judgment and Orders After Hearing
Outcome
Application to prune the tree granted; removal of the tree not ordered.
Legal Topics
['damage or Injury From Trees' 'neighbouring Property' 'pruning of Overhanging Branches' 'risk of Limb Failure' 'arborist Evidence']
['trees Disputes Between Neighbours' 'land and Environment Court'] ['damage or Injury From Trees' 'neighbouring Property' 'pruning of Overhanging Branches' 'risk of Limb Failure' 'arborist Evidence']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) for Removal or Pruning of a Tree / Principal Judgment and Orders After Hearing

Legal Issues

  1. 1 ["Whether the Liquidambar tree was likely to cause damage to the applicant's property in the near future or likely to injure any person" 'Whether removal of the tree was required or whether pruning would sufficiently minimise the risk' 'What extent of pruning and ongoing monitoring should be ordered']

Ratio Decidendi

There was a risk of further limb failures in the near future above the applicant's property that might cause damage or injury, but Mr Draper's evidence established that pruning could minimise the risk sufficiently while allowing retention of the tree; given the extent of past pruning and signs of stress, ongoing monitoring and periodic removal of hazardous deadwood or branches were required.

Court Disposition

Application to prune the tree granted; removal of the tree not ordered.

Orders

  • ['The application to prune the tree is granted as per the following orders.' 'Within 60 days of the date of these orders, the respondents are to engage a suitably qualified and experienced (minimum AQF level 3) arborist with all appropriate insurances to prune the Liquidambar as per the pruning diagram on page 6 of...