Michaels v Lei [2023] NSWLEC 1168

Michaels v Lei [2023] NSWLEC 1168

The applicant satisfied the reasonable-effort requirement in s 10(1)(a), but did not prove past, present or likely near-future damage to the swimming pool or surrounds, because the alleged harm arose from tree debris and the associated reasonable maintenance burden covered by the Barker principle. The applicant also did not prove any genuine or unacceptable risk of injury; the tree was found to be sound, safe and low risk. Because s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 was not satisfied, the Court had no power to make the requested orders and refused the application.

Jurisdiction
Australia
Judgment Date
12 April 2023
Procedural Posture
Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
The application is refused.
Legal Topics
['trees (disputes Between Neighbours) Act 2006' 'damage to Property' 'risk of Injury' 'reasonable Effort to Reach Agreement' 'reasonable Maintenance' 'overhanging Branches' 'pruning' 'compensation']
['environmental Law' 'tree Disputes' 'neighbour Disputes'] ['trees (disputes Between Neighbours) Act 2006' 'damage to Property' 'risk of Injury' 'reasonable Effort to Reach Agreement' 'reasonable Maintenance' 'overhanging Branches' 'pruning' 'compensation']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the owners of the land on which the tree is situated under s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the tree has caused, is causing or is likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree is likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Court should order pruning or compensation in relation to debris from the tree and alleged maintenance costs.']

Ratio Decidendi

The applicant satisfied the reasonable-effort requirement in s 10(1)(a), but did not prove past, present or likely near-future damage to the swimming pool or surrounds, because the alleged harm arose from tree debris and the associated reasonable maintenance burden covered by the Barker principle. The applicant also did not prove any genuine or unacceptable risk of injury; the tree was found to be sound, safe and low risk. Because s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 was not satisfied, the Court had no power to make the requested orders and refused the application.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.']