Elson v Novek [2015] NSWLEC 1454

Elson v Novek [2015] NSWLEC 1454

The application was dismissed because the alleged sooty mould damage arose from aphids inhabiting the tree rather than from the tree itself, so the Court had no jurisdiction to make removal or compensation orders for that damage; the evidence did not establish that a fallen branch from the tree caused the roof tile damage; ordinary leaf fall and associated maintenance did not justify intervention with the tree; no evidence showed branches were likely to fail in the near future and injure a person; and the Court could not consider replacement of the fence because the Strata, which owned and managed the common property fence, was not a party.

Jurisdiction
Australia
Judgment Date
23 October 2015
Procedural Posture
Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After Hearing
Outcome
The application is dismissed.
Legal Topics
['insect Damage' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'property Damage' 'tree Dispute Principle' 'dividing Fence' 'risk of Injury From Tree Limbs']
['environmental Law' 'trees Disputes Between Neighbours' 'property Damage'] ['insect Damage' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'property Damage' 'tree Dispute Principle' 'dividing Fence' 'risk of Injury From Tree Limbs']

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Procedural Posture

Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After Hearing

Legal Issues

  1. 1 ["Whether the Celtis australis tree caused, is causing, or is likely in the near future to cause damage to the applicant's property within section 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether sooty mould and honey dew associated with Hackberry Woolly Aphids inhabiting the tree constitute damage as a consequence of the tree for the purposes of the Act.' 'Whether a fallen branch from the tree caused damage to a roof ridge cap.' 'Whether leaf fall and debris from the tree justified orders for removal or intervention.' 'Whether the tree was likely to cause injury to a person.' 'Whether the Court could consider replacement of the timber boundary fence when the Strata was not a party.']

Ratio Decidendi

The application was dismissed because the alleged sooty mould damage arose from aphids inhabiting the tree rather than from the tree itself, so the Court had no jurisdiction to make removal or compensation orders for that damage; the evidence did not establish that a fallen branch from the tree caused the roof tile damage; ordinary leaf fall and associated maintenance did not justify intervention with the tree; no evidence showed branches were likely to fail in the near future and injure a person; and the Court could not consider replacement of the fence because the Strata, which owned and managed the common property fence, was not a party.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']