Zhou v Hobbs [2011] NSWLEC 1275

Zhou v Hobbs [2011] NSWLEC 1275

The tree had caused damage to the applicant's fence for the purposes of s 10(2), and the remaining tree posed a high risk of damage or injury in the near future, so removal orders were appropriate. Compensation for the fence repair was refused because there was no evidence that the respondent should have identified a pre-existing weakness before the failure, and the fence damage occurred when unidentified people cut branches from the fallen stem; applying Robson v Leischke, the loss remained with the applicant rather than being shifted to the tree owner.

Jurisdiction
Australia
Judgment Date
20 September 2011
Procedural Posture
Class 2 Application Pursuant to Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application for compensation dismissed; application regarding the tree upheld.
Legal Topics
['damage to Property From Neighbouring Tree' 'removal of Tree' 'compensation Refused' "court's Power to Award Costs"]
['tree Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['damage to Property From Neighbouring Tree' 'removal of Tree' 'compensation Refused' "court's Power to Award Costs"]

Case Brief

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Procedural Posture

Class 2 Application Pursuant to Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made for removal of the fallen stem and the remainder of the tree.' 'Whether the applicant should receive compensation for repairs to the fence.' 'Whether the Court could award legal costs and court fees.']

Ratio Decidendi

The tree had caused damage to the applicant's fence for the purposes of s 10(2), and the remaining tree posed a high risk of damage or injury in the near future, so removal orders were appropriate. Compensation for the fence repair was refused because there was no evidence that the respondent should have identified a pre-existing weakness before the failure, and the fence damage occurred when unidentified people cut branches from the fallen stem; applying Robson v Leischke, the loss remained with the applicant rather than being shifted to the tree owner.

Court Disposition

Application for compensation dismissed; application regarding the tree upheld.

Orders

  • ['The application for compensation is dismissed.' 'The application regarding the tree is upheld.' 'The respondent is to engage and pay for an arborist, with a minimum AQF level 3 and appropriate public liability insurance, including for damage to underground services, to remove the fallen stem and all its branches...