Heggs v Carter & Morris [2010] NSWLEC 1247

Heggs v Carter & Morris [2010] NSWLEC 1247

The application was dismissed because the Court was not satisfied that the Pepper Tree was likely in the near future to cause damage to the applicants' property or likely to cause injury to any person. There were no signs of damage to paving, brickwork, roof or sewer, no signs of instability, dieback or decline, and the risk of branch failure causing injury was very remote. Although the tree may have contributed to fence displacement, the fence had no material damage and remained functional, so no order was made in the Court's discretion.

Jurisdiction
Australia
Judgment Date
25 August 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment After Hearing
Outcome
Application dismissed
Legal Topics
['future Damage' 'injury to Persons' 'tree Removal' 'neighbouring Trees']
['trees (neighbours)' 'property Law' 'land and Environment Court Proceedings'] ['future Damage' 'injury to Persons' 'tree Removal' 'neighbouring Trees']

Case Brief

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Pepper Tree has caused, is causing, or is likely in the near future to cause damage to the applicants' property." 'Whether the Pepper Tree is likely to cause injury to any person.' 'Whether any order should be made concerning displacement of the boundary fence.']

Ratio Decidendi

The application was dismissed because the Court was not satisfied that the Pepper Tree was likely in the near future to cause damage to the applicants' property or likely to cause injury to any person. There were no signs of damage to paving, brickwork, roof or sewer, no signs of instability, dieback or decline, and the risk of branch failure causing injury was very remote. Although the tree may have contributed to fence displacement, the fence had no material damage and remained functional, so no order was made in the Court's discretion.

Court Disposition

Application dismissed

Orders

  • ['The application to remove the tree is dismissed.']