Low v Elliott [2007] NSWLEC 809

Low v Elliott [2007] NSWLEC 809

Because there was no existing damage to either retaining wall, both engineers agreed there was no present damage, and the arborists' evidence indicated any possible damage was more than 2 years away if it occurred at all, the requirements of s10(2) were not met and the Court's jurisdiction was not activated; the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
21 November 2007
Procedural Posture
Trees (neighbours) Application Concerning Removal or Treatment of Trees and Alleged Property Damage / Ex Tempore Judgment After Hearing on Site
Outcome
Appeal dismissed.
Legal Topics
['removal or Treatment of Trees' 'potential Tree Root Damage to Retaining Walls' 'overhanging Branches and Leaf Drop' 'jurisdiction Under S10(2) of the Trees (disputes Between Neighbours) Act 2006']
['land and Environment' 'tree Disputes Between Neighbours'] ['removal or Treatment of Trees' 'potential Tree Root Damage to Retaining Walls' 'overhanging Branches and Leaf Drop' 'jurisdiction Under S10(2) of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Trees (neighbours) Application Concerning Removal or Treatment of Trees and Alleged Property Damage / Ex Tempore Judgment After Hearing on Site

Legal Issues

  1. 1 ["Whether the Court's jurisdiction under s10(2) of the Trees (Disputes between Neighbours) Act 2006 was activated where there was no existing damage to the retaining walls and any possible damage was more than 2 years away." 'Whether orders should be made for removal or other treatment of 5 lemon scented gum trees at 17 Brae Street, Bronte.']

Ratio Decidendi

Because there was no existing damage to either retaining wall, both engineers agreed there was no present damage, and the arborists' evidence indicated any possible damage was more than 2 years away if it occurred at all, the requirements of s10(2) were not met and the Court's jurisdiction was not activated; the appeal was dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['That the appeal is dismissed' 'The Exhibits are returned the parties.']