Willis v Johnson [2021] NSWLEC 1513

Willis v Johnson [2021] NSWLEC 1513

Although the applicant made reasonable efforts to reach agreement, the statutory threshold for Pt 2 orders was not met. The grey gum shed only the usual amount of debris in an urban and vegetated environment, so debris, blocked gutters, mould and shading fell within ordinary maintenance principles. The brush turkey faeces and associated health concerns were caused by birds using the tree, not by the tree itself, and therefore were not remediable under the Trees Act. The fire risk did not establish that the tree was likely in the near future to cause damage or injury. The Court therefore had no basis to order removal, pruning or compensation.

Jurisdiction
Australia
Judgment Date
30 August 2021
Procedural Posture
Class 2 Part 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Extemporaneous Decision
Outcome
The application was refused.
Legal Topics
['overhanging Tree' 'damage to Property' 'risk of Injury' 'brush Turkey Faeces' 'tree Debris' 'mould' 'fire Risk' 'jurisdiction Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['overhanging Tree' 'damage to Property' 'risk of Injury' 'brush Turkey Faeces' 'tree Debris' 'mould' 'fire Risk' 'jurisdiction Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Part 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Extemporaneous Decision

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the tree owner under s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the grey gum caused, was causing, or was likely in the near future to cause damage to the applicant's property." "Whether the tree was likely to cause injury to any person, including by reason of brush turkeys roosting in it and leaving faeces on the applicant's property." 'Whether debris, shading, mould, blocked gutters and downpipes justified orders under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether risk of fire involving the tree justified orders under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

Although the applicant made reasonable efforts to reach agreement, the statutory threshold for Pt 2 orders was not met. The grey gum shed only the usual amount of debris in an urban and vegetated environment, so debris, blocked gutters, mould and shading fell within ordinary maintenance principles. The brush turkey faeces and associated health concerns were caused by birds using the tree, not by the tree itself, and therefore were not remediable under the Trees Act. The fire risk did not establish that the tree was likely in the near future to cause damage or injury. The Court therefore had no basis to order removal, pruning or compensation.

Court Disposition

The application was refused.

Orders

  • ['The application is refused.' 'The exhibits are returned, except for Exhibit A.']