Cleminson v Nussbaum & anor [2015] NSWLEC 1497

Cleminson v Nussbaum & anor [2015] NSWLEC 1497

The application was dismissed because the scant material did not satisfy the Court that the trees had caused, were causing, or were likely in the near future to cause damage under s 10(2)(a), and there was insufficient certainty or proof of a nexus between the trees the subject of the application and the alleged sewer damage or root incursions.

Jurisdiction
Australia
Judgment Date
30 November 2015
Procedural Posture
Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment
Outcome
Application dismissed
Legal Topics
['possible Future Damage From Trees' 'tree Roots and Sewer Pipes' 'jurisdictional Test Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006' 'insufficient Evidence of Nexus Between Trees and Alleged Damage']
['land and Environment' 'trees Disputes Between Neighbours'] ['possible Future Damage From Trees' 'tree Roots and Sewer Pipes' 'jurisdictional Test Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006' 'insufficient Evidence of Nexus Between Trees and Alleged Damage']

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Procedural Posture

Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ["Whether the bamboo or frangipani has caused, is causing, or is likely in the near future to cause damage to the applicant's property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." "Whether there was sufficient evidence linking roots in the applicant's sewer pipes to trees on the respondents' property." 'Whether orders should be made for removal of trees and shrubs, killing roots remaining in the ground, or relining sewer pipes.']

Ratio Decidendi

The application was dismissed because the scant material did not satisfy the Court that the trees had caused, were causing, or were likely in the near future to cause damage under s 10(2)(a), and there was insufficient certainty or proof of a nexus between the trees the subject of the application and the alleged sewer damage or root incursions.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']