Browne v Slack-Smith & anor [2013] NSWLEC 1198

Browne v Slack-Smith & anor [2013] NSWLEC 1198

The Court found that the Cypress tree's roots had caused or were likely to cause damage to the applicant's paving and posed a potential risk regarding electrical cables sufficient to satisfy s 10(2) of the Trees (Disputes Between Neighbours) Act 2006, thereby engaging the Court's powers to order removal of the tree and roots, but found no jurisdiction under the Act regarding the section of the fence or repair of the electricity kiosk.

Parties
Applicant: Mr A Browne; Respondent: Mrs S Slack-Smith; Respondent: Mr J Slack-Smith
Jurisdiction
Australia
Judgment Date
16 October 2013
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Judgment at Hearing
Outcome
Application upheld in part; tree to be removed at respondents' expense
Legal Topics
Trees on Boundary, Damage to Property, Court's Jurisdiction Under Trees Act
Property Law Neighbour Disputes Environmental Law Trees on Boundary Damage to Property Court's Jurisdiction Under Trees Act

Case Brief

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Parties

Mr A Browne

Applicant

Mrs S Slack-Smith

Respondent

Mr J Slack-Smith

Respondent

Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Judgment at Hearing

Legal Issues

  1. 1 Whether the Cypress tree caused or is likely to cause damage to the applicant's property
  2. 2 Whether the Court has jurisdiction to make orders regarding the fence, paving, and electricity kiosk under the Trees Act

Ratio Decidendi

The Court found that the Cypress tree's roots had caused or were likely to cause damage to the applicant's paving and posed a potential risk regarding electrical cables sufficient to satisfy s 10(2) of the Trees (Disputes Between Neighbours) Act 2006, thereby engaging the Court's powers to order removal of the tree and roots, but found no jurisdiction under the Act regarding the section of the fence or repair of the electricity kiosk.

Court Disposition

Application upheld in part; tree to be removed at respondents' expense

Orders

  • Application upheld in part
  • Respondents to engage and pay for an AQF level 3 arborist to remove the tree to ground level within 60 days