MacPhail & anor v Ware & anor [2012] NSWLEC 1230

MacPhail & anor v Ware & anor [2012] NSWLEC 1230

The application was dismissed because each element failed. The Jacaranda and Liquidamber had been the subject of the 2008 application and there was no material factual change or fresh evidence justifying renewed orders for the same damage; Liquidamber suckers did not constitute damage or a likely risk of damage or injury. The conifers did not satisfy s 10(2) because overhanging branches or fallen leaves were not shown to be likely to cause damage or injury. For the Fiddlewood and Golden Cypress, causation of driveway damage was not established, and even if jurisdiction were enlivened, other contributing factors and s 12 considerations meant no orders would be made. The palms posed only...

Jurisdiction
Australia
Judgment Date
17 August 2012
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application is dismissed.
Legal Topics
['damage to Property' 'risk of Injury' 'tree Removal and Pruning' 'repeat Application' 'fresh Evidence' 'compensation']
['environmental Law' 'neighbour Disputes' 'trees Disputes'] ['damage to Property' 'risk of Injury' 'tree Removal and Pruning' 'repeat Application' 'fresh Evidence' 'compensation']

Case Brief

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ['Whether the Court had jurisdiction under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 for each tree.' 'Whether there had been a material factual change allowing a second application concerning trees that were the subject of the 2008 application.' 'Whether later survey evidence concerning the Liquidamber was fresh evidence justifying reconsideration of compensation issues determined in 2008.' 'Whether orders should be made for removal, pruning, root removal, or compensation in relation to the trees.']

Ratio Decidendi

The application was dismissed because each element failed. The Jacaranda and Liquidamber had been the subject of the 2008 application and there was no material factual change or fresh evidence justifying renewed orders for the same damage; Liquidamber suckers did not constitute damage or a likely risk of damage or injury. The conifers did not satisfy s 10(2) because overhanging branches or fallen leaves were not shown to be likely to cause damage or injury. For the Fiddlewood and Golden Cypress, causation of driveway damage was not established, and even if jurisdiction were enlivened, other contributing factors and s 12 considerations meant no orders would be made. The palms posed only...

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']