Woodhead v Higgins [2020] NSWLEC 1520

Woodhead v Higgins [2020] NSWLEC 1520

The application was dismissed because the applicant did not establish damage to property or likely injury as required by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. Dropping leaves, flowers, bark and sticks were treated as ordinary minor tree debris and not damage under the Act; bird droppings were not caused by the tree itself; and the evidence and site inspection did not show a probable or likely risk of injury. Since s 10 was not satisfied, the Court had no jurisdiction under s 7 to order intervention with the tree.

Jurisdiction
Australia
Judgment Date
06 October 2020
Procedural Posture
Class 2 Application Pursuant to S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application is dismissed.
Legal Topics
['apprehension of Damage and Injury' 'overhanging Branches' 'dropping Debris' 'bird Droppings' 'expert Evidence' 'tree Removal or Pruning']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['apprehension of Damage and Injury' 'overhanging Branches' 'dropping Debris' 'bird Droppings' 'expert Evidence' 'tree Removal or Pruning']

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Procedural Posture

Class 2 Application Pursuant to S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the tree has caused, is causing or is likely in the near future to cause damage to the applicant's property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree is likely to cause injury to any person within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Court had jurisdiction under s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 to make orders for intervention with the tree.']

Ratio Decidendi

The application was dismissed because the applicant did not establish damage to property or likely injury as required by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. Dropping leaves, flowers, bark and sticks were treated as ordinary minor tree debris and not damage under the Act; bird droppings were not caused by the tree itself; and the evidence and site inspection did not show a probable or likely risk of injury. Since s 10 was not satisfied, the Court had no jurisdiction under s 7 to order intervention with the tree.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']