Kellock v Callinan; Le Poidevin v Callinan [2013] NSWLEC 1006

Kellock v Callinan; Le Poidevin v Callinan [2013] NSWLEC 1006

In matter 20837 of 2012, s 10(2) was not satisfied because the Golden Elm showed no signs of likely failure in the near or foreseeable future and the Claret Ash was unlikely to cause damage in the near future, leaving the Court without jurisdiction to order intervention. In matter 21075 of 2012, s 10(2) was satisfied because Golden Elm roots had caused and would continue to cause paving damage; because root pruning or a root barrier needed to repair and prevent damage would likely destabilise the tree, removal of the tree was required, with partial reimbursement of root removal costs ordered due to the applicant's prior awareness of the problem.

Jurisdiction
Australia
Judgment Date
09 January 2013
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Application dismissed in 20837 of 2012; application upheld in 21075 of 2012; tree removal ordered.
Legal Topics
['damage to Property' 'tree Removal' 'root Damage to Paving' 'future Damage or Injury From Trees' 'jurisdictional Threshold Under S 10(2)' 'apportionment of Root Removal Costs']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['damage to Property' 'tree Removal' 'root Damage to Paving' 'future Damage or Injury From Trees' 'jurisdictional Threshold Under S 10(2)' 'apportionment of Root Removal Costs']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ["Whether the Golden Elm or Claret Ash had caused, was causing, or was likely in the near future to cause damage to Mr Kellock's property or likely to cause injury to any person." "Whether roots of the Golden Elm had caused and would continue to cause damage to Ms Le Poidevin's paving." 'What orders should be made under the Trees (Disputes Between Neighbours) Act 2006, including whether the Golden Elm should be removed and how root removal costs should be apportioned.']

Ratio Decidendi

In matter 20837 of 2012, s 10(2) was not satisfied because the Golden Elm showed no signs of likely failure in the near or foreseeable future and the Claret Ash was unlikely to cause damage in the near future, leaving the Court without jurisdiction to order intervention. In matter 21075 of 2012, s 10(2) was satisfied because Golden Elm roots had caused and would continue to cause paving damage; because root pruning or a root barrier needed to repair and prevent damage would likely destabilise the tree, removal of the tree was required, with partial reimbursement of root removal costs ordered due to the applicant's prior awareness of the problem.

Court Disposition

Application dismissed in 20837 of 2012; application upheld in 21075 of 2012; tree removal ordered.

Orders

  • ['In matter 20837 of 2012, the application is dismissed.' 'In matter 21075 of 2012, the application is upheld.' 'Within 60 days of the date of these orders the respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove the Golden Elm to a height of up to 1.5m above ground....