Borg-Musin & anor v McInnes [2014] NSWLEC 1052

Borg-Musin & anor v McInnes [2014] NSWLEC 1052

Although alleged damage to a car roof from dead wood could be sufficient to engage jurisdiction under s 10(2), the evidence did not show instability, abnormal health, a likelihood of whole tree failure, or a fire risk warranting intervention. The dead wood was minor, the risk was small, and removal of the tree would be significantly disproportionate to the risk posed. There was insufficient evidence to warrant orders for any intervention with the tree.

Jurisdiction
Australia
Judgment Date
24 March 2014
Procedural Posture
Class 2 Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application dismissed
Legal Topics
['damage to Property' 'injury' 'potential Storm Damage' 'bushfire Risk' 'neighbouring Tree Removal']
['trees Disputes' 'property' 'land and Environment Court'] ['damage to Property' 'injury' 'potential Storm Damage' 'bushfire Risk' 'neighbouring Tree Removal']

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Procedural Posture

Class 2 Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the tree has caused, is causing, or is likely in the near future to cause damage to the applicants' property or is likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether concerns about whole tree failure in a storm or other act of God justified orders for removal of the tree.' 'Whether alleged fallen branches damaging a vehicle and bushfire risk justified intervention with or removal of the tree.']

Ratio Decidendi

Although alleged damage to a car roof from dead wood could be sufficient to engage jurisdiction under s 10(2), the evidence did not show instability, abnormal health, a likelihood of whole tree failure, or a fire risk warranting intervention. The dead wood was minor, the risk was small, and removal of the tree would be significantly disproportionate to the risk posed. There was insufficient evidence to warrant orders for any intervention with the tree.

Court Disposition

Application dismissed

Orders

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