Tuft v Piddington [2008] NSWLEC 1249

Tuft v Piddington [2008] NSWLEC 1249

Although the applicant's allergic reaction to the Caffir Plum was an injury giving jurisdiction under s 10(2)(b), the Court declined as a matter of discretion to order removal or interference because the tree had social and ecosystem value, the applicant had a long history of asthma and knew or should have known of the issue, and she had been seeking to sell her property. The Court was not satisfied that structural failure of the tree was likely to cause injury to any person or likely in the near future to damage the applicant's property.

Jurisdiction
Australia
Judgment Date
03 June 2008
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning a Neighbouring Tree / Ex Tempore Judgment
Outcome
Application dismissed.
Legal Topics
['meaning of Injury' 'allergic Reaction and Asthma' 'tree Removal' 'risk of Injury' 'risk of Property Damage']
['land and Environment' 'trees Disputes Between Neighbours'] ['meaning of Injury' 'allergic Reaction and Asthma' 'tree Removal' 'risk of Injury' 'risk of Property Damage']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning a Neighbouring Tree / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether an allergic reaction, severe allergic bronchitis and rhinitis caused by pollen from a Caffir Plum tree is an injury for the purposes of s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the Court should exercise its discretion to order removal of or interference with the tree because of the applicant's allergic reaction." 'Whether failure of the tree was likely to cause injury to persons.' "Whether failure of the tree was likely in the near future to cause damage to the applicant's property."]

Ratio Decidendi

Although the applicant's allergic reaction to the Caffir Plum was an injury giving jurisdiction under s 10(2)(b), the Court declined as a matter of discretion to order removal or interference because the tree had social and ecosystem value, the applicant had a long history of asthma and knew or should have known of the issue, and she had been seeking to sell her property. The Court was not satisfied that structural failure of the tree was likely to cause injury to any person or likely in the near future to damage the applicant's property.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']