Burgess v Varlow [2015] NSWLEC 1457

Burgess v Varlow [2015] NSWLEC 1457

The evidence of actual damage is insufficient to satisfy the jurisdictional test under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 for making orders. Leaf drop, as accepted in Tree Dispute Principle, generally does not warrant intervention, and the risk of fire from leaf accumulation is not engaged under the Act in these circumstances.

Parties
Applicant: Ms L Burgess; Respondent: Mr R Varlow
Jurisdiction
Australia
Judgment Date
10 November 2015
Procedural Posture
Tree Dispute Application / Final Determination
Outcome
Application dismissed
Legal Topics
Tree Disputes, Damage to Property, Neighbourhood Disputes
Environmental Law Tree Disputes Damage to Property Neighbourhood Disputes

Case Brief

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Parties

Ms L Burgess

Applicant

Mr R Varlow

Respondent

Procedural Posture

Tree Dispute Application / Final Determination

Legal Issues

  1. 1 Whether the Melaleuca bracteata tree has caused, is causing or is likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether leaf drop constitutes sufficient damage or risk of injury to warrant intervention under the Act
  3. 3 Whether the risk of fire from leaf accumulation engages provisions of the Trees (Disputes Between Neighbours) Act 2006

Ratio Decidendi

The evidence of actual damage is insufficient to satisfy the jurisdictional test under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 for making orders. Leaf drop, as accepted in Tree Dispute Principle, generally does not warrant intervention, and the risk of fire from leaf accumulation is not engaged under the Act in these circumstances.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.