Wedes v Fong [2019] NSWLEC 1183

Wedes v Fong [2019] NSWLEC 1183

Although the cracking in the wall and brick upturn and the bowing of the fence were minor damage and the Court accepted the tree was a cause so that jurisdiction was engaged, the evidence did not establish that marked damage or sudden collapse was likely in the next 12 months. Falling debris and gutter maintenance did not found relief under s 7, the tree posed a low and acceptable risk of injury, and the tree's amenity, biodiversity, shade, wind protection, landscaping, soil stability and runoff benefits outweighed the applicants' concerns. The application was therefore dismissed.

Jurisdiction
Australia
Judgment Date
21 February 2019
Procedural Posture
Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 Seeking Removal and Stump Grinding of a Glochidion Ferdinandi (cheese Tree) on Adjoining Land / Hearing and Final Decision
Outcome
The application is dismissed.
Legal Topics
['apprehended Damage to Property From a Tree' 'risk of Injury From a Tree' 'retaining Wall and Fence Damage' 'falling Leaves, Sticks and Gutter Maintenance' 'discretionary Matters Under S 12 of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['apprehended Damage to Property From a Tree' 'risk of Injury From a Tree' 'retaining Wall and Fence Damage' 'falling Leaves, Sticks and Gutter Maintenance' 'discretionary Matters Under S 12 of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 Seeking Removal and Stump Grinding of a Glochidion Ferdinandi (cheese Tree) on Adjoining Land / Hearing and Final Decision

Legal Issues

  1. 1 ["Whether the tree caused, was causing, or was likely in the near future to cause damage to the applicants' property." 'Whether the tree was likely to cause injury to any person.' 'Whether falling leaves, sticks and debris, and associated maintenance, provided a basis for orders under s 7 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Court should exercise discretion to order removal or pruning of the tree despite minor damage.']

Ratio Decidendi

Although the cracking in the wall and brick upturn and the bowing of the fence were minor damage and the Court accepted the tree was a cause so that jurisdiction was engaged, the evidence did not establish that marked damage or sudden collapse was likely in the next 12 months. Falling debris and gutter maintenance did not found relief under s 7, the tree posed a low and acceptable risk of injury, and the tree's amenity, biodiversity, shade, wind protection, landscaping, soil stability and runoff benefits outweighed the applicants' concerns. The application was therefore dismissed.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']