Ferguson & anor v Radnidge & anor [2017] NSWLEC 1668

Ferguson & anor v Radnidge & anor [2017] NSWLEC 1668

The applicants did not prove a sufficient nexus between the respondents' trees and the alleged structural damage to their dwelling, so the Court had no jurisdiction to order compensation or tree removal on that basis. However, s 10(2) was satisfied for limited risks or damage involving T1 branches contacting the Granny Flat, dead wood in T4 with potential to fall into the applicants' property, T4 trunk displacement of the fence, and dead T5 branches with potential to fall into the applicants' property, justifying limited pruning and fence rectification orders.

Jurisdiction
Australia
Judgment Date
23 November 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Application for removal of eight trees and compensation dismissed; limited orders made for pruning, removal of hazardous material, fence rectification, and access.
Legal Topics
['damage to Property' 'potential Injury From Trees' 'compensation' 'tree Removal' 'sufficiency of Evidence' 'causation']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['damage to Property' 'potential Injury From Trees' 'compensation' 'tree Removal' 'sufficiency of Evidence' 'causation']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether each tree had caused, was causing, or was likely in the near future to cause damage to the applicants' property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether any tree was likely to cause injury to any person within s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether there was sufficient evidence of a nexus between the respondents' trees and alleged structural damage to the applicants' dwelling to justify removal or compensation." 'Whether limited pruning and fence rectification orders should be made.']

Ratio Decidendi

The applicants did not prove a sufficient nexus between the respondents' trees and the alleged structural damage to their dwelling, so the Court had no jurisdiction to order compensation or tree removal on that basis. However, s 10(2) was satisfied for limited risks or damage involving T1 branches contacting the Granny Flat, dead wood in T4 with potential to fall into the applicants' property, T4 trunk displacement of the fence, and dead T5 branches with potential to fall into the applicants' property, justifying limited pruning and fence rectification orders.

Court Disposition

Application for removal of eight trees and compensation dismissed; limited orders made for pruning, removal of hazardous material, fence rectification, and access.

Orders

  • ["The application for removal of eight trees growing on the respondents' property is dismissed." 'The application for compensation is dismissed.' "Within 60 days of the date of these orders, the respondents are to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove...