McCann v Zheng [2018] NSWLEC 1239

McCann v Zheng [2018] NSWLEC 1239

The Court was not satisfied on the evidence that roots from the respondents' tree damaged the applicants' sewer, concrete, or any other parts of their property. Although autumn leaf fall was abundant and some leaves might enter the applicants' gutters, there was no sign of gutter damage, flooding from blocked gutters was not treated as damage caused by the tree, and in any event ordinary leaf fall and gutter cleaning fell within reasonable urban maintenance under Barker v Kyriakides. The statutory threshold for orders under the Trees Act was not met.

Jurisdiction
Australia
Judgment Date
15 May 2018
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Determination
Outcome
The application is dismissed.
Legal Topics
['tree Removal' 'tree Pruning' 'tree Roots' 'leaf Fall Blocking Gutters' 'reasonable Maintenance' 'fresh Application After Determination']
['trees Disputes Between Neighbours' 'land and Environment'] ['tree Removal' 'tree Pruning' 'tree Roots' 'leaf Fall Blocking Gutters' 'reasonable Maintenance' 'fresh Application After Determination']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Determination

Legal Issues

  1. 1 ["Whether the Liquidamber tree has caused, is causing, or is likely in the near future to cause damage to the applicants' property." 'Whether leaf fall blocking gutters justified orders for removal of or intervention with the tree.' 'Whether the applicants could make a further application if they gathered further evidence.']

Ratio Decidendi

The Court was not satisfied on the evidence that roots from the respondents' tree damaged the applicants' sewer, concrete, or any other parts of their property. Although autumn leaf fall was abundant and some leaves might enter the applicants' gutters, there was no sign of gutter damage, flooding from blocked gutters was not treated as damage caused by the tree, and in any event ordinary leaf fall and gutter cleaning fell within reasonable urban maintenance under Barker v Kyriakides. The statutory threshold for orders under the Trees Act was not met.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']