Vinski v Wilson [2023] NSWLEC 1801

Vinski v Wilson [2023] NSWLEC 1801

The applicant did not satisfy s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. The alleged debris from the respondent's small Evergreen Ash was ordinary urban tree debris and any related roof deterioration could have been avoided by occasional reasonable maintenance. The garage was over 30 years old,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 August 2023
Procedural Posture
Class 2 Tree Dispute Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Principal Judgment
Outcome
The application is refused.
Legal Topics
['damage to Property From Neighbouring Tree' 'risk of Injury From Tree' 'urban Tree Debris and Reasonable Maintenance' 's 12 Considerations' 'failure to Maintain Property']
['trees (disputes Between Neighbours)' 'property Law' 'land and Environment Court Proceedings'] ['damage to Property From Neighbouring Tree' 'risk of Injury From Tree' 'urban Tree Debris and Reasonable Maintenance' 's 12 Considerations' 'failure to Maintain Property']

Source-derived case record

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Procedural Posture

Class 2 Tree Dispute Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Principal Judgment

Legal Issues

  1. 1 ["Whether the respondent's Evergreen Ash had caused, was causing, or was likely in the near future to cause damage to the applicant's garage or property." 'Whether the tree was likely to cause injury to any person.' 'Whether debris from overhanging branches and the associated maintenance burden warranted orders under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether factors other than the tree, including the age, condition and maintenance of the garage, contributed to the alleged damage.']

Ratio Decidendi

The applicant did not satisfy s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. The alleged debris from the respondent's small Evergreen Ash was ordinary urban tree debris and any related roof deterioration could have been avoided by occasional reasonable maintenance. The garage was over 30 years old, structurally compromised, deteriorated and inadequately maintained, which were the primary contributors to the alleged damage. The tree was structurally sound, had been maintained, had no reported failures and presented a low and acceptable risk of injury. The Court therefore had no power to make the requested orders.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.']