Awad v Hardie (No 2) [2010] NSWLEC 1258

Awad v Hardie (No 2) [2010] NSWLEC 1258

Although the final survey established that the tree was principally located on the respondent's property, the Court was not satisfied on inspection and the evidence that the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's house, pathway or fence. Any possible damage from gutter blockage or risk from berries was a matter for ordinary property maintenance and did not warrant discretionary intervention. The application was therefore dismissed.

Jurisdiction
Australia
Judgment Date
09 September 2010
Procedural Posture
Application Pursuant to the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment After Hearings on 11 June, 23 July and 9 September 2010
Outcome
Application dismissed.
Legal Topics
['tree on Boundary' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006' 'proof of Damage' 'risk of Injury' 'discretionary Refusal of Orders']
['trees Disputes' 'land and Environment'] ['tree on Boundary' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006' 'proof of Damage' 'risk of Injury' 'discretionary Refusal of Orders']

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Procedural Posture

Application Pursuant to the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment After Hearings on 11 June, 23 July and 9 September 2010

Legal Issues

  1. 1 ["Whether the tree was principally located on the respondent's property for the purposes of jurisdiction under s 43 of the Trees (Disputes Between Neighbours) Act 2006." "Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property under s 10(2) of the Act." 'Whether the tree was likely to cause injury to any person.' 'Whether the Court should exercise its discretion to make orders for intervention with or removal of the tree.']

Ratio Decidendi

Although the final survey established that the tree was principally located on the respondent's property, the Court was not satisfied on inspection and the evidence that the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's house, pathway or fence. Any possible damage from gutter blockage or risk from berries was a matter for ordinary property maintenance and did not warrant discretionary intervention. The application was therefore dismissed.

Court Disposition

Application dismissed.

Orders

  • ['No substantive orders made.' 'The application is dismissed.']