Gilshenan v Hogbin & anor [2009] NSWLEC 1020

Gilshenan v Hogbin & anor [2009] NSWLEC 1020

The application was dismissed because, although the sewer blockage was accepted to have been caused by a tree root, the applicant did not prove on the balance of probabilities that either Verbena tree caused the intrusion, and there was no evidence that detritus from the Callistemon caused or was likely to cause actual property damage or injury so as to satisfy the jurisdictional requirement under s 10(2) of the Act.

Jurisdiction
Australia
Judgment Date
21 January 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Trees / Ex Tempore Judgment
Outcome
Application dismissed.
Legal Topics
['sewer Blockage by Tree Roots' 'identification of Tree Roots' 'leaves and Detritus in Gutters' 'civil Burden of Proof' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']
['trees Disputes' 'neighbour Disputes' 'property Law'] ['sewer Blockage by Tree Roots' 'identification of Tree Roots' 'leaves and Detritus in Gutters' 'civil Burden of Proof' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Trees / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the applicant proved on the balance of probabilities that the two Verbena trees caused the sewer blockage by root intrusion.' 'Whether leaves and detritus from the Callistemon caused, were causing, or were likely in the near future to cause actual damage to property or injury to any person under s 10(2) of the Act.' 'Whether ordinary urban tree detritus warranted orders for removal of the Callistemon.']

Ratio Decidendi

The application was dismissed because, although the sewer blockage was accepted to have been caused by a tree root, the applicant did not prove on the balance of probabilities that either Verbena tree caused the intrusion, and there was no evidence that detritus from the Callistemon caused or was likely to cause actual property damage or injury so as to satisfy the jurisdictional requirement under s 10(2) of the Act.

Court Disposition

Application dismissed.

Orders

  • ["The totality of Mr Gilshenan's application is dismissed."]