Barker & anor v Morris & anor [2014] NSWLEC 1205

Barker & anor v Morris & anor [2014] NSWLEC 1205

The dead eucalypt was in an advanced state of decline, overhung the applicants' backyard, and branches were likely to continue falling, so it was likely in the near future to cause damage to the applicants' property and could cause injury, satisfying s 10(2) and warranting removal at the respondents' expense. The compensation claim failed because there was no evidence that the fence damage was caused by the tree, and the filing fee costs were beyond a Commissioner's jurisdiction.

Jurisdiction
Australia
Judgment Date
03 October 2014
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application upheld in part; orders for tree removal; application for compensation dismissed.
Legal Topics
['damage to Property' 'risk of Injury' 'tree Removal' 'compensation' 'jurisdiction of Commissioners']
['trees Disputes Between Neighbours' 'property' 'dividing Fences'] ['damage to Property' 'risk of Injury' 'tree Removal' 'compensation' 'jurisdiction of Commissioners']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the dead tree had caused, was causing, or was likely in the near future to cause damage to the applicants' property or was likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether orders should be made requiring removal of the dead tree at the respondents' expense." 'Whether the respondents should reimburse the applicants for 50% of the cost of replacing the dividing fence.' 'Whether the applicants could recover half the Court filing fee before a Commissioner.']

Ratio Decidendi

The dead eucalypt was in an advanced state of decline, overhung the applicants' backyard, and branches were likely to continue falling, so it was likely in the near future to cause damage to the applicants' property and could cause injury, satisfying s 10(2) and warranting removal at the respondents' expense. The compensation claim failed because there was no evidence that the fence damage was caused by the tree, and the filing fee costs were beyond a Commissioner's jurisdiction.

Court Disposition

Application upheld in part; orders for tree removal; application for compensation dismissed.

Orders

  • ['The application is upheld in part.' 'By the 14 November 2014, the respondents are to engage and pay for an AQF level 3 arborist, with an appropriate and current insurance cover, to remove the tallest dead tree in the south-eastern corner of 39 Peak Avenue, North Nowra to a single trunk with a minimum height of 3m...