Nott v Leung; Chu v Leung [2019] NSWLEC 1394

Nott v Leung; Chu v Leung [2019] NSWLEC 1394

Although the absence of an active dispute did not prevent the applications, the Court could not make orders because the evidence did not satisfy s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW). The applicants did not demonstrate on the required probability that the Hoop Pine had caused, was causing, or was likely in the near future to cause property damage, or that it was likely to cause injury. The arboricultural evidence relied on by the applicants was not supported by observations and was preferred less than Council's evidence.

Jurisdiction
Australia
Judgment Date
16 August 2019
Procedural Posture
Class 2 Applications Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning Removal of One Tree / Principal Judgment After Onsite Hearing
Outcome
Applications refused.
Legal Topics
['tree Removal' 'risk of Damage or Injury' 'root Damage' 'whole Tree Failure' 'local Council Appearance' 'jurisdictional Threshold Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006 (nsw)']
['trees Disputes Between Neighbours' 'environmental and Planning Law' 'property Damage'] ['tree Removal' 'risk of Damage or Injury' 'root Damage' 'whole Tree Failure' 'local Council Appearance' 'jurisdictional Threshold Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006 (nsw)']

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Procedural Posture

Class 2 Applications Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning Removal of One Tree / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the absence of a dispute between neighbours prevented the applicants from applying to the Court under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW).' "Whether the Hoop Pine had caused, was causing, or was likely in the near future to cause damage to the applicants' properties." 'Whether the Hoop Pine was likely to cause injury to any person by whole tree failure.' "Whether the Court could make orders to remove the tree where Council had refused consent and the respondents had not appealed Council's decisions."]

Ratio Decidendi

Although the absence of an active dispute did not prevent the applications, the Court could not make orders because the evidence did not satisfy s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW). The applicants did not demonstrate on the required probability that the Hoop Pine had caused, was causing, or was likely in the near future to cause property damage, or that it was likely to cause injury. The arboricultural evidence relied on by the applicants was not supported by observations and was preferred less than Council's evidence.

Court Disposition

Applications refused.

Orders

  • ['Proceedings 2019/55091: The application to remove the tree is refused.' 'Proceedings 2019/55250: The application to remove the tree is refused.']