Lilly & Rutherford v Worimi Aboriginal Community Co-Operative Ltd (In Administration) [2018] NSWLEC 1611

Lilly & Rutherford v Worimi Aboriginal Community Co-Operative Ltd (In Administration) [2018] NSWLEC 1611

The Part 2A application was dismissed because the three mature indigenous trees were most likely self-sown, were not shown to have been planted, and did not form a hedge. The Part 2 application succeeded to the extent of pruning orders because deadwood and overextended limbs from the Blackbutt were likely to fall and cause injury, but removal of the tree was unnecessary where pruning could sufficiently mitigate the risk.

Jurisdiction
Australia
Judgment Date
20 November 2018
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Determination and Orders
Outcome
Part 2A application dismissed; Part 2 application allowed in part with pruning orders against the respondent.
Legal Topics
['part 2 a Application' 'trees Planted So as to Form a Hedge' 'obstruction of Sunlight' 'part 2 Application' 'risk of Injury From Falling Limbs' 'pruning Orders']
['trees (disputes Between Neighbours)' 'land and Environment Court'] ['part 2 a Application' 'trees Planted So as to Form a Hedge' 'obstruction of Sunlight' 'part 2 Application' 'risk of Injury From Falling Limbs' 'pruning Orders']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Determination and Orders

Legal Issues

  1. 1 ['Whether the Blackbutt and two Broad-leaved Paperbarks were groups of two or more trees planted so as to form a hedge for the purposes of Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW).' 'Whether deadwood and limbs from the Blackbutt were likely to fall and cause injury.' 'Whether removal of the Blackbutt was necessary or pruning would sufficiently mitigate the risk.']

Ratio Decidendi

The Part 2A application was dismissed because the three mature indigenous trees were most likely self-sown, were not shown to have been planted, and did not form a hedge. The Part 2 application succeeded to the extent of pruning orders because deadwood and overextended limbs from the Blackbutt were likely to fall and cause injury, but removal of the tree was unnecessary where pruning could sufficiently mitigate the risk.

Court Disposition

Part 2A application dismissed; Part 2 application allowed in part with pruning orders against the respondent.

Orders

  • ["Within 60 days of the date of the orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Blackbutt near their front boundary to remove deadwood greater than 25 mm diameter above private property, remove the...