Micallef v Diep [2019] NSWLEC 1475

Micallef v Diep [2019] NSWLEC 1475

The Court was not satisfied that the Cypress had caused, was causing, or was likely in the near future to cause damage to the applicants' property, and was not satisfied that it posed a likely risk of injury. The residual structure appeared sound, surrounding trees reduced wind exposure, the risk of branch drop was low and acceptable, and no evidence justified intervention. The Court therefore had no jurisdiction to make orders and dismissed the application.

Jurisdiction
Australia
Judgment Date
05 September 2019
Procedural Posture
Class 2 Application Pursuant to S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After on Site Hearing
Outcome
The application is dismissed.
Legal Topics
['apprehension of Damage to Property' 'risk of Injury From Tree Branches' 'jurisdiction to Make Tree Orders' 'neighbouring Land']
['trees Disputes Between Neighbours' 'land and Environment'] ['apprehension of Damage to Property' 'risk of Injury From Tree Branches' 'jurisdiction to Make Tree Orders' 'neighbouring Land']

Case Brief

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Procedural Posture

Class 2 Application Pursuant to S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After on Site Hearing

Legal Issues

  1. 1 ["Whether the tree has caused, is causing or is likely, in the near future, to cause damage to the applicants' property." 'Whether the tree is likely to cause injury to any person.' 'Whether the Court had jurisdiction to make orders under the Trees (Disputes between Neighbours) Act 2006.']

Ratio Decidendi

The Court was not satisfied that the Cypress had caused, was causing, or was likely in the near future to cause damage to the applicants' property, and was not satisfied that it posed a likely risk of injury. The residual structure appeared sound, surrounding trees reduced wind exposure, the risk of branch drop was low and acceptable, and no evidence justified intervention. The Court therefore had no jurisdiction to make orders and dismissed the application.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']