Price v Dougherty [2013] NSWLEC 1089

Price v Dougherty [2013] NSWLEC 1089

The application was upheld in part because the remaining trunk should be removed to prevent weakly attached epicormic shoots from creating a possible risk within 12 months, and because the tree had contributed to damage to the section of dividing fence immediately adjoining its base and to mounding of part of the driveway. The applicant failed to substantiate the vehicle claim, failed to prove a nexus between the tree and retaining wall damage, and was not entitled to the broader claimed replacement or compensation beyond the parts shown to be caused by the tree.

Jurisdiction
Australia
Judgment Date
22 May 2013
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Application upheld in part; remainder of tree to be removed; rectification of fence and driveway ordered.
Legal Topics
['tree Removal' 'damage to Property' 'risk of Injury to Persons' 'compensation Claim Beyond Jurisdiction' 'fence Rectification' 'driveway Rectification']
['land and Environment' 'trees Disputes Between Neighbours' 'property Damage' 'dividing Fences'] ['tree Removal' 'damage to Property' 'risk of Injury to Persons' 'compensation Claim Beyond Jurisdiction' 'fence Rectification' 'driveway Rectification']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the applicant could recover compensation for claimed loss of property value and stress-related damages.' "Whether alleged damage to the vehicle, retaining wall, dividing fence and driveway was caused by the respondents' tree." 'What orders should be made for removal of the remaining trunk and rectification of damage.']

Ratio Decidendi

The application was upheld in part because the remaining trunk should be removed to prevent weakly attached epicormic shoots from creating a possible risk within 12 months, and because the tree had contributed to damage to the section of dividing fence immediately adjoining its base and to mounding of part of the driveway. The applicant failed to substantiate the vehicle claim, failed to prove a nexus between the tree and retaining wall damage, and was not entitled to the broader claimed replacement or compensation beyond the parts shown to be caused by the tree.

Court Disposition

Application upheld in part; remainder of tree to be removed; rectification of fence and driveway ordered.

Orders

  • ['The application is upheld in part.' "Within 60 days of the date of these orders, the remainder of the tree is to be removed to ground level at the respondents' expense." "Within 90 days of the date of these orders, the respondents are to rectify the section of fence between the existing metal posts on the...