Riachi v Kerslake [2010] NSWLEC 1153

Riachi v Kerslake [2010] NSWLEC 1153

Although more than 50% of the tree was situated on the respondent's property, there was no evidence that the tree had caused or was causing damage to the applicants' property, it was highly unlikely that roots would in the near future damage the reinforced wall, and the Court had no jurisdiction to order interference with a tree based on property that did not yet exist, namely the pool equipment or fence.

Jurisdiction
Australia
Judgment Date
22 June 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 for Removal of a Tree / Ex Tempore Judgment
Outcome
Application dismissed.
Legal Topics
['potential Damage to Property' 'property Not in Existence' 'boundary Tree' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'near Future Damage']
['trees Disputes Between Neighbours' 'property'] ['potential Damage to Property' 'property Not in Existence' 'boundary Tree' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'near Future Damage']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 for Removal of a Tree / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the tree was situated wholly or principally on the respondent's land so as to give the Court jurisdiction under 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 applicants' property." 'Whether orders could be made based on possible damage to pool equipment or a fence that had not yet been installed.']

Ratio Decidendi

Although more than 50% of the tree was situated on the respondent's property, there was no evidence that the tree had caused or was causing damage to the applicants' property, it was highly unlikely that roots would in the near future damage the reinforced wall, and the Court had no jurisdiction to order interference with a tree based on property that did not yet exist, namely the pool equipment or fence.

Court Disposition

Application dismissed.

Orders

  • ['The application to remove the tree is dismissed.']