Lyons v Maybaum & anor [2014] NSWLEC 1055

Lyons v Maybaum & anor [2014] NSWLEC 1055

The Court was not satisfied that s 10(2) was engaged for the Cedrus deodara or for Trees 3-7 because the evidence showed no relevant current damage and no likelihood of damage in the near future or injury in the foreseeable future; theoretical possibilities of storm failure, fire, or leaf litter were insufficient. For the Claret Ash, a decaying stub overhanging the applicant's property could in the near future cause damage, so the Court upheld the pruning application only to the extent of ordering removal of that dead branch stub.

Jurisdiction
Australia
Judgment Date
25 March 2014
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application dismissed in relation to removal of the Cedrus deodara and removal or pruning of the five remaining trees; application to prune the Claret Ash upheld in part.
Legal Topics
['potential Damage to Property From Neighbouring Trees' 'potential Injury From Neighbouring Trees' 'leaf Litter and Gutter Debris' 'bush Fire Risk' 'tree Pruning and Removal']
['tree Disputes' 'property' 'bush Fire Hazard'] ['potential Damage to Property From Neighbouring Trees' 'potential Injury From Neighbouring Trees' 'leaf Litter and Gutter Debris' 'bush Fire Risk' 'tree Pruning and Removal']

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

Legal Issues

  1. 1 ["Whether the Cedrus deodara was likely in the near future to cause damage to the applicant's property or likely to cause injury to any person." 'Whether leaf litter and debris from the Cedrus deodara and Claret Ash constituted actionable damage or justified orders under the Trees (Disputes Between Neighbours) Act 2006.' "Whether bush fire risk associated with the respondents' trees engaged s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the Claret Ash required pruning because of a decaying branch stub overhanging the applicant's property." 'Whether five recently planted smaller trees were causing, had caused, or were likely to cause damage or injury.']

Ratio Decidendi

The Court was not satisfied that s 10(2) was engaged for the Cedrus deodara or for Trees 3-7 because the evidence showed no relevant current damage and no likelihood of damage in the near future or injury in the foreseeable future; theoretical possibilities of storm failure, fire, or leaf litter were insufficient. For the Claret Ash, a decaying stub overhanging the applicant's property could in the near future cause damage, so the Court upheld the pruning application only to the extent of ordering removal of that dead branch stub.

Court Disposition

Application dismissed in relation to removal of the Cedrus deodara and removal or pruning of the five remaining trees; application to prune the Claret Ash upheld in part.

Orders

  • ['The application to remove the Cedrus deodara is dismissed.' 'The application to prune the Claret Ash is upheld in part.' 'Within 30 days of the date of these orders, the respondents are to remove or have removed on their behalf the dead branch stub identified in paragraph [40] of the judgment. The branch stub is...