Sell v Newfield [2011] NSWLEC 1367

Sell v Newfield [2011] NSWLEC 1367

The jurisdictional test in s 10(2)(a) was not met for any of the three trees. The evidence did not show that T1, T2 or T3 had caused, were causing, or were likely in the near future to cause damage to the applicants' property. Leaf tannin staining was not shown to be damage caused by a tree, small fallen branches and overhanging branches did not establish likely damage, and mere encroachment into the applicants' airspace was not damage. The Court therefore had no jurisdiction to make the pruning orders sought.

Jurisdiction
Australia
Judgment Date
02 December 2011
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning Trees on Adjoining Land / Principal Judgment After on Site Hearing
Outcome
The application is dismissed.
Legal Topics
['damage to Property Caused by Trees' 'likely Future Damage' 'leaf Tannin Staining' 'overhanging Branches' 'mere Encroachment Into Airspace' 'court Jurisdiction Under S 10(2)']
['land and Environment' 'tree Disputes Between Neighbours'] ['damage to Property Caused by Trees' 'likely Future Damage' 'leaf Tannin Staining' 'overhanging Branches' 'mere Encroachment Into Airspace' 'court Jurisdiction Under S 10(2)']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning Trees on Adjoining Land / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether any of the three trees had caused, were causing, or were 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 leaf tannin staining on roof tiles was damage caused by a tree.' "Whether branches overhanging the applicants' house or clothesline, or encroaching into their airspace, enlivened the Court's jurisdiction." 'Whether prior branch failures from tree T3 established likely damage in the near future.']

Ratio Decidendi

The jurisdictional test in s 10(2)(a) was not met for any of the three trees. The evidence did not show that T1, T2 or T3 had caused, were causing, or were likely in the near future to cause damage to the applicants' property. Leaf tannin staining was not shown to be damage caused by a tree, small fallen branches and overhanging branches did not establish likely damage, and mere encroachment into the applicants' airspace was not damage. The Court therefore had no jurisdiction to make the pruning orders sought.

Court Disposition

The application is dismissed.

Orders

  • ['The application in its entirety is dismissed.']