Mekhael v Scurville [2021] NSWLEC 1470

Mekhael v Scurville [2021] NSWLEC 1470

The application was dismissed because s 10(2)(a)(i) of the Trees (Disputes Between Neighbours) Act 2006 was not satisfied. Tree refuse and associated maintenance did not constitute actionable damage; there was insufficient reliable evidence linking the hard surface damage and Casuarina root suckers to the four trees the subject of the application rather than previously removed and stump-ground trees; and no evidence showed the trees posed more than a low and acceptable risk of injury. Without satisfaction of s 10(2), the Court had no power to make the requested orders.

Jurisdiction
Australia
Judgment Date
20 August 2021
Procedural Posture
Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Application dismissed.
Legal Topics
['damage Caused by Trees' 'apprehended Damage' 'risk of Injury From Trees' 'tree Debris and Maintenance' 'root Suckers and Hard Surface Damage' 'discretionary Matters Under S 12']
['trees Disputes Between Neighbours' 'environmental and Planning Law' 'property Law'] ['damage Caused by Trees' 'apprehended Damage' 'risk of Injury From Trees' 'tree Debris and Maintenance' 'root Suckers and Hard Surface Damage' 'discretionary Matters Under S 12']

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Procedural Posture

Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether falling leaves, needles, sticks and fruit and associated maintenance constituted damage actionable under the Act.' 'Whether Casuarina root suckers causing damage to hard surfaces were proven to emanate from the trees the subject of the application.' 'Whether the trees were likely to cause injury to any person.' 'If s 10(2) were satisfied, whether the discretionary matters in s 12 favoured removal or other intervention.']

Ratio Decidendi

The application was dismissed because s 10(2)(a)(i) of the Trees (Disputes Between Neighbours) Act 2006 was not satisfied. Tree refuse and associated maintenance did not constitute actionable damage; there was insufficient reliable evidence linking the hard surface damage and Casuarina root suckers to the four trees the subject of the application rather than previously removed and stump-ground trees; and no evidence showed the trees posed more than a low and acceptable risk of injury. Without satisfaction of s 10(2), the Court had no power to make the requested orders.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']