Otim v Madden [2012] NSWLEC 1008

Otim v Madden [2012] NSWLEC 1008

The Court had no jurisdiction to order underpinning of a rock because the Act applies to trees, but it had jurisdiction to consider compensation for removed trees because s 4(4) treated those trees as still situated on the respondents' land for the application. Given the admitted property damage caused by failed trees and the applicants' out-of-pocket insurance excess and electricity reconnection expenses, reimbursement was reasonable. For the remaining trees, the evidence did not satisfy s 10(2) for T1, T2, T3, T7, T8, T9 or T10, but dead branches in T12 were likely in the near future to cause property damage or injury, justifying pruning orders. The respondents' arborist report was...

Jurisdiction
Australia
Judgment Date
20 January 2012
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Trees / Principal Judgment After on Site Hearing
Outcome
Application for compensation upheld and orders made for payment; orders made for pruning of dead wood; application to underpin the rock dismissed.
Legal Topics
['compensation for Damage Caused by Trees' 'removed Trees' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006' 'pruning of Deadwood' 'expert Arborist Evidence' 'service of Application']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment'] ['compensation for Damage Caused by Trees' 'removed Trees' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006' 'pruning of Deadwood' 'expert Arborist Evidence' 'service of Application']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Trees / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether delayed formal service of the application disadvantaged the respondents' 'Whether the Court had jurisdiction under the Trees (Disputes Between Neighbours) Act 2006 to order underpinning of a rock' "Whether removed trees T4, T5, T6 and T11 were still taken to be situated on the respondents' land for the purpose of determining compensation" "Whether the respondents should reimburse the applicants' out-of-pocket expenses caused by fallen trees" "Whether trees T1, T2, T3, T7, T8, T9, T10 and T12 had caused, were causing, or were likely in the near future to cause damage to the applicants' property or injury to persons" "Whether the respondents' arborist report should be given weight"]

Ratio Decidendi

The Court had no jurisdiction to order underpinning of a rock because the Act applies to trees, but it had jurisdiction to consider compensation for removed trees because s 4(4) treated those trees as still situated on the respondents' land for the application. Given the admitted property damage caused by failed trees and the applicants' out-of-pocket insurance excess and electricity reconnection expenses, reimbursement was reasonable. For the remaining trees, the evidence did not satisfy s 10(2) for T1, T2, T3, T7, T8, T9 or T10, but dead branches in T12 were likely in the near future to cause property damage or injury, justifying pruning orders. The respondents' arborist report was...

Court Disposition

Application for compensation upheld and orders made for payment; orders made for pruning of dead wood; application to underpin the rock dismissed.

Orders

  • ['The application to underpin the rock is dismissed.' 'Within 30 days of the orders the respondents are to have all deadwood branches to a minimum basal diameter of 20mm pruned from the Sydney Bluegum in the south-east corner of their property, tree T12, by an arborist with minimum AQF level 3 qualification and...