Culgan & Anor v Bradley [2009] NSWLEC 1347

Culgan & Anor v Bradley [2009] NSWLEC 1347

The applicants did not prove that the respondents' oak tree had caused, was causing, or was likely in the near future to cause damage to their property. The relevant section of retaining wall remained vertically aligned, no roots were visible in the cracks, no house damage or roots were shown, and the sewer roots were most likely from the applicants' own trees rather than the oak. Accordingly, the elements of s 10(2) were not satisfied.

Jurisdiction
Australia
Judgment Date
12 October 2009
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment
Outcome
Application dismissed.
Legal Topics
['damage to Property' 'tree Removal' 'retaining Wall Cracking' 'sewer Roots' 'near Future Damage']
['trees (neighbours)' 'property'] ['damage to Property' 'tree Removal' 'retaining Wall Cracking' 'sewer Roots' 'near Future Damage']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment

Legal Issues

  1. 1 ["Whether the Quercus robur (English Oak) on the respondents' property had caused, was causing, or was likely in the near future to cause damage to the applicants' property." 'Whether the Court should order removal of the tree and rectification of damage.']

Ratio Decidendi

The applicants did not prove that the respondents' oak tree had caused, was causing, or was likely in the near future to cause damage to their property. The relevant section of retaining wall remained vertically aligned, no roots were visible in the cracks, no house damage or roots were shown, and the sewer roots were most likely from the applicants' own trees rather than the oak. Accordingly, the elements of s 10(2) were not satisfied.

Court Disposition

Application dismissed.

Orders

  • ['The application to remove the tree is dismissed.']