Ward v Glasson & anor [2012] NSWLEC 1350

Ward v Glasson & anor [2012] NSWLEC 1350

Although the tree had contributed to two cracks in the adjoining stable wall and the Court's jurisdiction was engaged, the evidence did not show damage sufficient to justify removal or intervention with the tree. The footing or course of blocks above was not cracked or noticeably displaced, there was no evidence of roots growing under the footing, and other more severe cracking could reasonably be attributed to reactive soils, water from ineffective or absent guttering, building construction and the 1989 earthquake. The applicant also did not establish likely branch failure or likely injury. The alleged 26-year-old incident involving the applicant's arborist did not give rise to a...

Jurisdiction
Australia
Judgment Date
19 December 2012
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearings on Site
Outcome
Application dismissed
Legal Topics
['damage to Property by Tree Roots' 'likely Injury From Tree Branch Failure' 'apprehended Bias' 'discretionary Considerations Under S 12 of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes' 'neighbour Disputes' 'land and Environment'] ['damage to Property by Tree Roots' 'likely Injury From Tree Branch Failure' 'apprehended Bias' 'discretionary Considerations Under S 12 of the Trees (disputes Between Neighbours) Act 2006']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearings on Site

Legal Issues

  1. 1 ["Whether the Court's jurisdiction under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 was engaged because the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person." "Whether the Commissioner should recuse himself for apprehended bias arising from an alleged incident involving the applicant's arborist about 26 years earlier." "Whether, having regard to the matters in s 12, orders should be made for removal of the tree and repair of the stables at the respondents' expense." 'Whether the evidence established that the tree was likely to cause future structural damage or injury through branch failure.']

Ratio Decidendi

Although the tree had contributed to two cracks in the adjoining stable wall and the Court's jurisdiction was engaged, the evidence did not show damage sufficient to justify removal or intervention with the tree. The footing or course of blocks above was not cracked or noticeably displaced, there was no evidence of roots growing under the footing, and other more severe cracking could reasonably be attributed to reactive soils, water from ineffective or absent guttering, building construction and the 1989 earthquake. The applicant also did not establish likely branch failure or likely injury. The alleged 26-year-old incident involving the applicant's arborist did not give rise to a...

Court Disposition

Application dismissed

Orders

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