Konn v Wisbey & Ors [2007] NSWLEC 799

Konn v Wisbey & Ors [2007] NSWLEC 799

Although the Court was satisfied under s 10(2)(a) that the tree had caused damage to the applicant's property, the deposited material was not extraordinary for an urban tree and the Barker v Kyriakides principle made ordinary maintenance by the applicant appropriate. On a proper exercise of discretion under the Act, there was no basis to order pruning, interference with the tree, or compensation for past impacts arising from failure to meet reasonable maintenance obligations.

Jurisdiction
Australia
Judgment Date
05 December 2007
Procedural Posture
Trees (neighbours) Neighbour Application / Ex Tempore Judgment
Outcome
Application dismissed.
Legal Topics
['neighbour Tree Pruning' 'compensation for Property Damage' 'court Discretion Under the Trees (disputes Between Neighbours) Act 2006' 'urban Tree Maintenance Responsibilities']
['land and Environment' 'trees Disputes Between Neighbours'] ['neighbour Tree Pruning' 'compensation for Property Damage' 'court Discretion Under the Trees (disputes Between Neighbours) Act 2006' 'urban Tree Maintenance Responsibilities']

Case Brief

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Procedural Posture

Trees (neighbours) Neighbour Application / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Jacaranda tree had caused, was causing or was likely in the near future to cause damage to the applicant's property or a likely risk of injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Court should order the respondents, at their expense, to prune the tree to the boundary.' 'Whether the Court should order compensation for gutter guard installation, Court application costs, or personal stress.']

Ratio Decidendi

Although the Court was satisfied under s 10(2)(a) that the tree had caused damage to the applicant's property, the deposited material was not extraordinary for an urban tree and the Barker v Kyriakides principle made ordinary maintenance by the applicant appropriate. On a proper exercise of discretion under the Act, there was no basis to order pruning, interference with the tree, or compensation for past impacts arising from failure to meet reasonable maintenance obligations.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']