Damages, Property, Evidence, Biodiversity, Forests, Jurisdiction
This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006. The applicants are seeking the removal of the tree as they contend that it has caused, and could continue to cause, damage to their property and is a risk of injury to people. The damage said to have been caused is a blocked sewer system as well as damage to parked cars by falling dead wood. The Ironbark is approximately 6-7m distance from the sewer pipe and some 2-3m above across a series of terraces. There are other trees and shrubs in the vicinity. Therefore it cannot be found, on the balance of probability, that the blockage was caused by the tree subject to this application. There is uncontested evidence that falling branches have damage parked vehicles. Due to the steepness of the land and its shape, the parking area could not be relocated to another part of the applicants’ property. after considering the written and oral evidence and inspecting the tree, I am satisfied that falling dead wood from the tree has caused damage to parked cars and could continue to do so. I am also concerned about the stability of the epicormic shoots arising from the cut stem and the risk they pose to the applicants’ property. However, there is no evidence to support the removal of the entire tree. The orders of the Court are:The application to remove the tree is refused. The respondent is to organise and pay for an arborist with a minimum AQF level 3 qualification in arboriculture and the appropriate current insurances, to remove all dead wood > 30 mm in diameter. All hanging branches are to be removed and the most northerly, previously cut stem, is to be cut to the union of the stem from which it arises.