Keith v Dawson [2007] NSWLEC 844

Keith v Dawson [2007] NSWLEC 844

The Court was not satisfied that the tree had damaged the retaining wall, that tree roots would damage the concrete path or house in the near future, or that the ceiling damage could be directly attributed to the tree. Fallen leaves, twigs and small branches were treated as ordinary incidents of urban trees under Barker v Kyriakides. Accordingly, no order for interference with the tree was warranted and the application was dismissed, noting the parties' agreement about future management of the tree.

Jurisdiction
Australia
Judgment Date
13 December 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Property Damage From a Tree / Ex Tempore Judgment
Outcome
Application dismissed, noting the agreement of the parties for management of the tree.
Legal Topics
['neighbouring Trees' 'damage to Property' 'tree Removal' 'fallen Leaves and Gutter Blockage' 'retaining Wall Damage']
['trees Disputes' 'property Damage' 'land and Environment'] ['neighbouring Trees' 'damage to Property' 'tree Removal' 'fallen Leaves and Gutter Blockage' 'retaining Wall Damage']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Property Damage From a Tree / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Eucalyptus botryoides tree on the respondent's property caused or was likely to cause damage to the applicant's concrete path or house." 'Whether the tree caused damage to the retaining wall on or near the common boundary.' 'Whether fallen leaves, twigs and small branches from the tree justified an order for removal of or intervention with the tree.' 'Whether alleged internal water damage could be attributed directly to the tree.' 'Whether the Court should order removal of or other interference with the tree.']

Ratio Decidendi

The Court was not satisfied that the tree had damaged the retaining wall, that tree roots would damage the concrete path or house in the near future, or that the ceiling damage could be directly attributed to the tree. Fallen leaves, twigs and small branches were treated as ordinary incidents of urban trees under Barker v Kyriakides. Accordingly, no order for interference with the tree was warranted and the application was dismissed, noting the parties' agreement about future management of the tree.

Court Disposition

Application dismissed, noting the agreement of the parties for management of the tree.

Orders

  • ['To the extent that Council consent is granted, Mr Keith may trim the tree branches to the boundary and further as required for such trimming to comply with AS 4373 – 2007 Australian Standard for Pruning of Amenity Trees.' "The branch trimming shall be at Mr Keith's cost." 'The branch trimming shall be carried out...