Young v Cole [2008] NSWLEC 1342

Young v Cole [2008] NSWLEC 1342

Although the tree had caused damage to the applicants' properties by water damage arising from gutters blocked by leaves, the evidence did not establish likely injury or likely near-future damage from branch fall, roots, sewer pipes, stormwater overflow or cracked brickwork. After considering the s 12 matters, including the tree's environmental and scenic value, the close construction of the villas to the pre-existing tree, drainage and guttering design, and the ordinary obligation to undertake maintenance for tree detritus, no interference with the tree was warranted; because the applications sought heavy pruning or removal, they were refused.

Jurisdiction
Australia
Judgment Date
12 August 2008
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Pruning or Removal of a Neighbour's Tree / Extempore Judgment After Hearing
Outcome
Applications refused
Legal Topics
['damage to Property From Overhanging Tree' 'risk of Injury From Falling Branches' 'pruning or Removal of Tree' 'neighbouring Landowners']
['trees Disputes' 'property Law' 'land and Environment'] ['damage to Property From Overhanging Tree' 'risk of Injury From Falling Branches' 'pruning or Removal of Tree' 'neighbouring Landowners']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Pruning or Removal of a Neighbour's Tree / Extempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether the peppercorn tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property within s 10(2) (a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the peppercorn tree was likely to cause injury to any person within s 10(2) (b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether, after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006, the Court should order heavy pruning or removal of the tree.']

Ratio Decidendi

Although the tree had caused damage to the applicants' properties by water damage arising from gutters blocked by leaves, the evidence did not establish likely injury or likely near-future damage from branch fall, roots, sewer pipes, stormwater overflow or cracked brickwork. After considering the s 12 matters, including the tree's environmental and scenic value, the close construction of the villas to the pre-existing tree, drainage and guttering design, and the ordinary obligation to undertake maintenance for tree detritus, no interference with the tree was warranted; because the applications sought heavy pruning or removal, they were refused.

Court Disposition

Applications refused

Orders

  • ['The applications are refused.']