Joaquim v Adamson [2009] NSWLEC 1312

Joaquim v Adamson [2009] NSWLEC 1312

The Court held that the Camphor Laurel and Privet should be removed by consent because they satisfied the likely risk of injury test. The Hills Fig tree required removal because its dying portion posed a likely risk of injury to the applicants and removal of that portion would make the remainder a likely risk of injury to the respondents. On the Briginshaw standard, the Court was comfortably satisfied that the death of the relevant part of the Hills Fig was caused solely by actions undertaken by or on behalf of the applicants, whether by poisoning, partial severing of a major root, or both; therefore the applicants must reimburse the respondents for removal of the Hills Fig and the...

Jurisdiction
Australia
Judgment Date
02 October 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Orders for Removal of Trees and Compensation for Damage Between Neighbours / Judgment After Site Inspection and Resumed Court Hearing
Outcome
Application allowed in part; consent removal orders made for two front trees; further tree work and compensation orders made; remaining aspects refused.
Legal Topics
['neighbour Tree Dispute' 'tree Removal Orders' 'poisoning of Tree' 'interference With Tree Roots' 'risk of Injury From Trees' 'property Damage From Trees' 'compensation for Tree Damage' 'procedural Fairness in Admission of Evidence']
['land and Environment' 'trees Disputes Between Neighbours' 'civil Procedure' 'evidence'] ['neighbour Tree Dispute' 'tree Removal Orders' 'poisoning of Tree' 'interference With Tree Roots' 'risk of Injury From Trees' 'property Damage From Trees' 'compensation for Tree Damage' 'procedural Fairness in Admission of Evidence']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Orders for Removal of Trees and Compensation for Damage Between Neighbours / Judgment After Site Inspection and Resumed Court Hearing

Legal Issues

  1. 1 ['Whether each tree satisfied a jurisdictional test under s 10(2)(a) or s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Hills Fig tree or parts of it posed a likely risk of injury requiring removal.' 'Whether the asymmetrical death of the Hills Fig tree was caused by the applicants through poisoning, severing a major root, or both.' 'Who should bear the cost of removing the Hills Fig tree and the adjacent small eucalypt.' 'Whether compensation should be ordered for sewer pipe damage, roof and television aerial damage, or other damage alleged by the applicants.' 'Whether orders should be made for the Pine tree, Kaffir Plum, large eucalypt, Illawarra Flame tree, Camphor Laurel and Privet.']

Ratio Decidendi

The Court held that the Camphor Laurel and Privet should be removed by consent because they satisfied the likely risk of injury test. The Hills Fig tree required removal because its dying portion posed a likely risk of injury to the applicants and removal of that portion would make the remainder a likely risk of injury to the respondents. On the Briginshaw standard, the Court was comfortably satisfied that the death of the relevant part of the Hills Fig was caused solely by actions undertaken by or on behalf of the applicants, whether by poisoning, partial severing of a major root, or both; therefore the applicants must reimburse the respondents for removal of the Hills Fig and the...

Court Disposition

Application allowed in part; consent removal orders made for two front trees; further tree work and compensation orders made; remaining aspects refused.

Orders

  • ["The Camphor Laurel at the front of the respondents' property adjacent to the boundary with the applicants' property is to be removed at the height of 100 mm above ground level and the stump poisoned." "The Privet at the front of the respondents' property adjacent to the boundary with the applicants' property is to...