McPherson & anor V Lake & anor [2017] NSWLEC 1081

McPherson & anor V Lake & anor [2017] NSWLEC 1081

The Court was not satisfied on the evidence that any of the four trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property, or were likely to cause injury to any person. The Eucalypt and Pine showed no evidence of instability or likely significant failure, the ivy was cut back and not causing damage, the wattle was healthy and pruned away from the applicants' property, and leaf litter or debris did not establish actionable damage. Because s 10(2) was not satisfied, the Court had no basis to make orders for removal or pruning, and the application was dismissed.

Jurisdiction
Australia
Judgment Date
21 February 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment
Outcome
Application dismissed
Legal Topics
['neighbouring Trees' 'tree Removal or Pruning' 'damage to Property' 'risk of Injury' 'leaf Litter and Debris' 'jurisdiction Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes' 'property Law' 'environmental and Planning Law'] ['neighbouring Trees' 'tree Removal or Pruning' 'damage to Property' 'risk of Injury' 'leaf Litter and Debris' 'jurisdiction Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the four 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 the trees were likely to cause injury to any person within s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether debris, leaf litter or ivy growth constituted actionable damage to the applicants' property."]

Ratio Decidendi

The Court was not satisfied on the evidence that any of the four trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property, or were likely to cause injury to any person. The Eucalypt and Pine showed no evidence of instability or likely significant failure, the ivy was cut back and not causing damage, the wattle was healthy and pruned away from the applicants' property, and leaf litter or debris did not establish actionable damage. Because s 10(2) was not satisfied, the Court had no basis to make orders for removal or pruning, and the application was dismissed.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']