Libbesson & anor v Martin & anor [2013] NSWLEC 1242

Libbesson & anor v Martin & anor [2013] NSWLEC 1242

The court found that s 10(2) was satisfied for Tree 1 and Tree 2 as there was more than a hypothetical possibility of damage caused; however, only the removal of Tree 1 was ordered due to the practicality and extent of required works. Compensation for insurance excess was appropriate as the probability on evidence linked the damage to Tree 2.

Jurisdiction
Australia
Judgment Date
24 December 2013
Procedural Posture
Trees (disputes Between Neighbours) Act Application / Judgment/principal Judgment
Outcome
Application upheld in part
Legal Topics
['damage to Property by Trees' 'compensation for Damage' 'orders for Removal of Trees']
['property Law' 'environmental Law'] ['damage to Property by Trees' 'compensation for Damage' 'orders for Removal of Trees']

Case Brief

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Procedural Posture

Trees (disputes Between Neighbours) Act Application / Judgment/principal Judgment

Legal Issues

  1. 1 ["Whether the court's jurisdiction under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 is engaged for trees causing or likely to cause damage or injury" 'Whether damage to property has been caused or is likely to be caused by trees on neighbouring land' 'Whether pruning or removal of trees is an appropriate remedy' 'Whether compensation should be awarded for insurance excess paid due to damage caused by a tree']

Ratio Decidendi

The court found that s 10(2) was satisfied for Tree 1 and Tree 2 as there was more than a hypothetical possibility of damage caused; however, only the removal of Tree 1 was ordered due to the practicality and extent of required works. Compensation for insurance excess was appropriate as the probability on evidence linked the damage to Tree 2.

Court Disposition

Application upheld in part

Orders

  • ['The respondents are to engage and pay for an AQF level 3 arborist to remove Tree 1 (Acacia decurrens) within 60 days.' 'Applicants to provide access for quoting and carrying out works for removal of Tree 1.' 'Works to comply with WorkCover NSW Code of Practice for the Amenity Tree Industry.' 'The respondents are...