Newman v Smith [2008] NSWLEC 1293

Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 for Removal of Trees and Compensation / Ex Tempore Judgment

Legal Issues

1. 1 ["Whether two palm trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property or injury to any person." "Whether a Jacaranda tree caused roots in the applicant's sewer pipe." 'Whether leaf debris from the Jacaranda on a polycarbonate roof or inside the roof created a likely risk of damage in the near future.' 'Whether roots from the Jacaranda caused lifting of fence footings or a concrete slab.' 'Whether any established impact warranted orders for removal of trees or compensation.']

Ratio Decidendi

The application was dismissed because Mr Newman did not establish, on the balance of probabilities and to the required level of satisfaction, that the trees satisfied the jurisdictional tests in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. The palm fronds had not caused proven damage or injury and any future risk was not sufficiently likely; several alleged impacts of the Jacaranda were not proven to have been caused by that tree; and the alleged fire and structural risks were not shown to be likely in the near future. In any event, some alleged impacts were minor or matters of ordinary property maintenance and did not warrant discretionary relief.

Court Disposition

Application dismissed

Orders

• ["The totality of Mr Newman's application is dismissed."]