Liu v Karcher [2022] NSWLEC 1563

Liu v Karcher [2022] NSWLEC 1563

T1 had caused damage to the applicant's property on at least three occasions since 2017 and further branch failure became foreseeable after the initial 2017 incident. The respondent did not take reasonable steps such as obtaining a qualified arborist's risk assessment or otherwise mitigating the risk. In light of T1's repeated branch shedding, poor branch structure, decay evidence, changed wind exposure and location near the boundary, further property damage was likely in the near future, satisfying s 10(2)(a) of the Trees Act. Pruning was not a viable long-term mitigation measure, so removal of T1 and compensation for reasonable post-2017 damage were warranted, while the injury risk was...

Jurisdiction
Australia
Judgment Date
14 October 2022
Procedural Posture
Class 1 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning Trees on Adjoining Land / Principal Judgment After Onsite Hearing
Outcome
Orders made requiring the respondent to pay compensation and remove T1; no further consideration or orders for T2 or T3.
Legal Topics
['falling Branches' 'tree Removal' 'compensation for Damage' 'foreseeability of Further Damage' 'risk of Injury' 'neighbouring Land']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment Court Jurisdiction'] ['falling Branches' 'tree Removal' 'compensation for Damage' 'foreseeability of Further Damage' 'risk of Injury' 'neighbouring Land']

Case Brief

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Procedural Posture

Class 1 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning Trees on Adjoining Land / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether T1 had caused, was causing, or was likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006." 'Whether T1 was likely to cause injury to any person under s 10(2)(b) of the Trees (Disputes between Neighbours) Act 2006.' 'Whether pruning or removal was the appropriate order to mitigate likely future damage from T1.' 'Whether the respondent should compensate the applicant for damage caused by branch failures from T1.' 'Whether T2 or T3 required any orders.']

Ratio Decidendi

T1 had caused damage to the applicant's property on at least three occasions since 2017 and further branch failure became foreseeable after the initial 2017 incident. The respondent did not take reasonable steps such as obtaining a qualified arborist's risk assessment or otherwise mitigating the risk. In light of T1's repeated branch shedding, poor branch structure, decay evidence, changed wind exposure and location near the boundary, further property damage was likely in the near future, satisfying s 10(2)(a) of the Trees Act. Pruning was not a viable long-term mitigation measure, so removal of T1 and compensation for reasonable post-2017 damage were warranted, while the injury risk was...

Court Disposition

Orders made requiring the respondent to pay compensation and remove T1; no further consideration or orders for T2 or T3.

Orders

  • ['Within 14 days of the date of these orders, the respondent shall pay the applicant $2369.00, by E.F.T or bank cheque.' 'Within 35 days of the date of these orders, the respondent shall, at his expense, remove Sydney Blue Gum (T1) from his rear yard to near ground level (the works). Regrowth shall be prevented or...