Kiefel v Pendergast [2013] NSWLEC 1126

Kiefel v Pendergast [2013] NSWLEC 1126

Although the tree was accepted as growing on adjoining land, the evidence did not satisfy the Court to the level required by s 10(2) that the Lemon-scented Gum had caused, was causing, or could in the near future cause damage to the applicant's property, or could cause injury to any person. The tree was observed to be healthy with no obvious structural defects, and the possibility of whole tree failure onto the applicant's property was considered very remote and hypothetical. As none of the s 10(2) tests were met, the Court had no jurisdiction to make orders for intervention with the tree.

Jurisdiction
Australia
Judgment Date
17 July 2013
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Orders for Removal of a Tree at the Respondent's Expense / Principal Judgment After Hearing
Outcome
Application dismissed
Legal Topics
['neighbouring Trees' 'damage to Property' 'risk of Injury' 'adjoining Land' 'tree Removal']
['trees Disputes' 'land and Environment Court Jurisdiction'] ['neighbouring Trees' 'damage to Property' 'risk of Injury' 'adjoining Land' 'tree Removal']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Orders for Removal of a Tree at the Respondent's Expense / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the tree was situated on adjoining land for the purposes of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the Lemon-scented Gum had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the Lemon-scented Gum was likely to cause injury to any person.' 'Whether the Court had jurisdiction to make orders for intervention with or removal of the tree.']

Ratio Decidendi

Although the tree was accepted as growing on adjoining land, the evidence did not satisfy the Court to the level required by s 10(2) that the Lemon-scented Gum had caused, was causing, or could in the near future cause damage to the applicant's property, or could cause injury to any person. The tree was observed to be healthy with no obvious structural defects, and the possibility of whole tree failure onto the applicant's property was considered very remote and hypothetical. As none of the s 10(2) tests were met, the Court had no jurisdiction to make orders for intervention with the tree.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']