Kirby v Herbert [2020] NSWLEC 1691

Kirby v Herbert [2020] NSWLEC 1691

Because neither side wanted any orders, and the Court was not satisfied that the retaining wall had been damaged by the trees, required replacement, or posed a risk requiring orders, it was not appropriate to make orders and the application was refused.

Jurisdiction
Australia
Judgment Date
18 September 2020
Procedural Posture
Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Trees and a Retaining Wall / Final Hearing; Application Amended and Refused
Outcome
The application is refused.
Legal Topics
['damage Caused by Neighbouring Trees' 'retaining Wall on or Near Common Boundary' 'removal of Trees Before Hearing' 'whether Orders Should Be Made Where No Orders Are Sought']
['trees Disputes Between Neighbours' 'land and Environment'] ['damage Caused by Neighbouring Trees' 'retaining Wall on or Near Common Boundary' 'removal of Trees Before Hearing' 'whether Orders Should Be Made Where No Orders Are Sought']

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Procedural Posture

Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Trees and a Retaining Wall / Final Hearing; Application Amended and Refused

Legal Issues

  1. 1 ["Whether the retaining wall was damaged by the respondents' trees." 'Whether the retaining wall required replacement or posed a risk justifying orders.' 'Whether orders should be made after the trees had been removed and the applicants no longer sought replacement of the retaining wall.' "Whether the retaining wall was on the boundary or entirely on the respondents' property."]

Ratio Decidendi

Because neither side wanted any orders, and the Court was not satisfied that the retaining wall had been damaged by the trees, required replacement, or posed a risk requiring orders, it was not appropriate to make orders and the application was refused.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.' 'The exhibits are returned, except for Exhibit A.']