Hansen v Hetherington [2009] NSWLEC 1178

Hansen v Hetherington [2009] NSWLEC 1178

The application was upheld in part because Trees 1, 2, 3, 4, 5, 7, 9 and 10 satisfied one or more statutory tests concerning property damage or risk of injury, giving the Court power to make orders. However, no orders were made for Trees 6, 8, 11, 12, 13, 14, 15 and 16 because they did not satisfy the tests or had...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
02 June 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Removal and Pruning of Trees, Property Damage, Injury Risk, Compensation and Costs / On Site Hearing and Ex Tempore Judgment
Outcome
Application upheld in part; no compensation for driveway repair awarded.
Legal Topics
['removal and Pruning of Trees' 'damage to Driveway, Shed and Power Line' 'risk of Injury From Trees' 'compensation for Driveway Repair' 'access to Light and Overshadowing' 'costs in Tree Applications']
['trees Disputes' 'property Damage' 'neighbour Disputes'] ['removal and Pruning of Trees' 'damage to Driveway, Shed and Power Line' 'risk of Injury From Trees' 'compensation for Driveway Repair' 'access to Light and Overshadowing' 'costs in Tree Applications']

Source-derived case record

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Removal and Pruning of Trees, Property Damage, Injury Risk, Compensation and Costs / On Site Hearing and Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether each tree satisfied one or more of the tests in s 10(2)(a) or s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Court should order removal, pruning, inspection or other works for trees that satisfied the statutory tests.' "Whether the respondent should pay compensation for repair of the applicants' driveway." 'Whether overshadowing or obstruction of access to light constituted damage to property on the land.' 'Whether Commissioners could order payment of legal costs, expert report costs, application fees or other expenses.']

Ratio Decidendi

The application was upheld in part because Trees 1, 2, 3, 4, 5, 7, 9 and 10 satisfied one or more statutory tests concerning property damage or risk of injury, giving the Court power to make orders. However, no orders were made for Trees 6, 8, 11, 12, 13, 14, 15 and 16 because they did not satisfy the tests or had been removed without having caused damage. Compensation for driveway repair was refused because the under-engineering of the driveway was the major reason tree roots had caused damage, the applicants had not given notice of driveway damage except through the application, there was no evidence of damage since notice was given, and other trees on the applicants' land might have...

Court Disposition

Application upheld in part; no compensation for driveway repair awarded.

Orders

  • ['The application is upheld in part.' 'The above ground parts of Tree 4 shall be removed.' 'Tree 1 shall be pruned 0.5 m clear of the adjacent insulated power cables.' "Tree 9 shall be pruned to remove the large limb that overhangs the applicants' shed." "The work described in Orders 2, 3 and 4 shall be completed at...