Shields v Wiblin [2009] NSWLEC 1053

Shields v Wiblin [2009] NSWLEC 1053

The applicant did not satisfy most elements of s10(2) because ordinary leaf drop did not justify removal or intervention, the replaced guttering was old and could reasonably have needed replacement, no prior notice of the alleged ceiling damage was given to the respondent, and inspection showed no obvious defects likely to cause injury in the near future. The only proven damage was some lattice damage likely caused by a fallen branch, but because of the lattice's age, the Bougainvillea growing through it and uncertainty about its prior condition, only partial compensation of $50.00 was warranted.

Jurisdiction
Australia
Judgment Date
19 February 2009
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After on Site Hearing
Outcome
Application dismissed except that compensation for the lattice was upheld in part.
Legal Topics
['removal of Tree' 'compensation for Damaged Property' 'leaf Drop and Gutter Damage' 'risk of Injury From Tree Branches']
['trees (neighbours)' 'property'] ['removal of Tree' 'compensation for Damaged Property' 'leaf Drop and Gutter Damage' 'risk of Injury From Tree Branches']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether the tree should be removed under the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the respondent should pay compensation for replacement of guttering, downpipes and ceiling allegedly damaged by leaf blockages and overflowing water.' 'Whether the respondent should pay compensation for a damaged panel of lattice allegedly caused by a fallen branch.' "Whether the tree was likely in the near future to cause damage to the applicant's property or injury to persons."]

Ratio Decidendi

The applicant did not satisfy most elements of s10(2) because ordinary leaf drop did not justify removal or intervention, the replaced guttering was old and could reasonably have needed replacement, no prior notice of the alleged ceiling damage was given to the respondent, and inspection showed no obvious defects likely to cause injury in the near future. The only proven damage was some lattice damage likely caused by a fallen branch, but because of the lattice's age, the Bougainvillea growing through it and uncertainty about its prior condition, only partial compensation of $50.00 was warranted.

Court Disposition

Application dismissed except that compensation for the lattice was upheld in part.

Orders

  • ['The application to remove the tree is dismissed.' 'The application for some compensation for damage to the guttering, downpipes and ceiling is dismissed.' 'The application for compensation for the lattice is upheld in part. The respondent is to pay the applicant the sum of $50.00 towards the replacement of the...