Tulloch v Dight [2012] NSWLEC 1099

Tulloch v Dight [2012] NSWLEC 1099

The two dead Silky Oaks on the respondent's land had caused damage to the applicant's dwelling and fence, were hazardous, and required removal to prevent further damage. The respondent had been alerted to the risk and had a reasonable opportunity to remove the hazard before damage occurred, so orders for removal, conditional compensation for the applicant's insurance excess, and apportionment of fence replacement costs were appropriate. The Court had no jurisdiction to make orders about lawn clippings because they are not trees.

Jurisdiction
Australia
Judgment Date
27 April 2012
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Orders After Onsite Hearing
Outcome
The application to remove the trees was upheld; orders were made for removal, fence replacement, apportionment of costs, and conditional compensation for the insurance excess. The lawn clippings element was dismissed for want of jurisdiction.
Legal Topics
['trees Disputes Between Neighbours' 'damage to Property' 'risk of Injury' 'tree Removal' 'dividing Fences' 'compensation']
['environmental Law' 'property Law' 'neighbour Disputes'] ['trees Disputes Between Neighbours' 'damage to Property' 'risk of Injury' 'tree Removal' 'dividing Fences' 'compensation']

Case Brief

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Orders After Onsite Hearing

Legal Issues

  1. 1 ["Whether the two Silky Oaks caused damage to the applicant's dwelling and fence and created a risk requiring removal." 'Whether the Court had jurisdiction to order cessation of dumping lawn clippings along the fence.' 'What orders and compensation were appropriate under the Trees (Disputes Between Neighbours) Act 2006 and the Dividing Fences Act 1991.' 'How the cost of replacing the common boundary fence should be apportioned between the parties.']

Ratio Decidendi

The two dead Silky Oaks on the respondent's land had caused damage to the applicant's dwelling and fence, were hazardous, and required removal to prevent further damage. The respondent had been alerted to the risk and had a reasonable opportunity to remove the hazard before damage occurred, so orders for removal, conditional compensation for the applicant's insurance excess, and apportionment of fence replacement costs were appropriate. The Court had no jurisdiction to make orders about lawn clippings because they are not trees.

Court Disposition

The application to remove the trees was upheld; orders were made for removal, fence replacement, apportionment of costs, and conditional compensation for the insurance excess. The lawn clippings element was dismissed for want of jurisdiction.

Orders

  • ['The application to remove the trees is upheld.' 'The respondent is to remove both trees to no more than 400 mm above ground level within seven days of the date of these orders.' 'The works in (2) are to be done by a suitably qualified arborist (minimum AQF level 3) in accordance with the WorkCover NSW Code of...