Inbari &anor v Rankin [2010] NSWLEC 1236

Inbari &anor v Rankin [2010] NSWLEC 1236

Although the Court was satisfied that the tree roots had caused minor lifting of paving and that falling seed pods presented a risk of injury, those matters did not justify removal. The paving damage was minor, readily rectifiable and removal would be disproportionate, particularly as no rectification order was sought. The seed pod risk was not sufficiently exceptional to depart from the Barker principle that ordinary tree litter in urban environments will not usually justify removal. Taken together, the matters did not warrant discretionary removal of the otherwise healthy tree, which provided amenity and modest habitat value.

Jurisdiction
Australia
Judgment Date
25 August 2010
Procedural Posture
Application Pursuant to Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Judgment After Hearing
Outcome
Application dismissed
Legal Topics
['removal of Boundary Tree' 'tree Roots Damaging Paving' 'risk of Injury From Seed Pods' 'jurisdiction Where Tree Is on Boundary' 'discretion to Order Removal or Rectification']
['trees Disputes Between Neighbours' 'property' 'dividing Fences'] ['removal of Boundary Tree' 'tree Roots Damaging Paving' 'risk of Injury From Seed Pods' 'jurisdiction Where Tree Is on Boundary' 'discretion to Order Removal or Rectification']

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Procedural Posture

Application Pursuant to Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the tree was situated principally on the respondent's property so as to enliven jurisdiction under s 4(3) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the tree had caused damage to the applicants' property by lifting paving." 'Whether falling seed pods were likely to cause injury, particularly to Mr Inbari who was legally blind.' 'Whether the damage and risk of injury justified an order for removal of the tree.' 'Whether any order should be made concerning reinstatement of the dividing fence.']

Ratio Decidendi

Although the Court was satisfied that the tree roots had caused minor lifting of paving and that falling seed pods presented a risk of injury, those matters did not justify removal. The paving damage was minor, readily rectifiable and removal would be disproportionate, particularly as no rectification order was sought. The seed pod risk was not sufficiently exceptional to depart from the Barker principle that ordinary tree litter in urban environments will not usually justify removal. Taken together, the matters did not warrant discretionary removal of the otherwise healthy tree, which provided amenity and modest habitat value.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']