Kam v Hamilton [2012] NSWLEC 1010

Kam v Hamilton [2012] NSWLEC 1010

The Court was satisfied on the site view, the expert evidence and the parties' evidence that a large woody root from the respondent's Blackbutt was a cause of damage to the applicant's property and that continued root growth would continue to cause damage. Severing the root was likely to compromise the tree's stability and engineering alternatives would be onerous and expensive. The Court therefore had jurisdiction and made consent orders for removal of the respondent's tree, but dismissed the request concerning the applicant's own tree because the Act did not apply to trees on the applicant's land.

Jurisdiction
Australia
Judgment Date
23 January 2012
Procedural Posture
Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Class 2 on Site Hearing; Consent Orders
Outcome
Application upheld in part; removal of tree on adjoining property ordered; application to remove tree on applicant's property dismissed.
Legal Topics
['damage to Property From Tree Roots' 'risk of Injury From Branch Failure' 'consent Orders' "jurisdiction Over Trees on Applicant's Land"]
['trees Disputes Between Neighbours' 'land and Environment'] ['damage to Property From Tree Roots' 'risk of Injury From Branch Failure' 'consent Orders' "jurisdiction Over Trees on Applicant's Land"]

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Procedural Posture

Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Class 2 on Site Hearing; Consent Orders

Legal Issues

  1. 1 ["Whether the respondent's Blackbutt had caused, was causing, or was likely in the near future to cause damage to the applicant's property or injury to any person." "Whether the Court had jurisdiction to make orders for removal of a tree on the applicant's own land." "Whether consent orders for removal of the respondent's tree were appropriate."]

Ratio Decidendi

The Court was satisfied on the site view, the expert evidence and the parties' evidence that a large woody root from the respondent's Blackbutt was a cause of damage to the applicant's property and that continued root growth would continue to cause damage. Severing the root was likely to compromise the tree's stability and engineering alternatives would be onerous and expensive. The Court therefore had jurisdiction and made consent orders for removal of the respondent's tree, but dismissed the request concerning the applicant's own tree because the Act did not apply to trees on the applicant's land.

Court Disposition

Application upheld in part; removal of tree on adjoining property ordered; application to remove tree on applicant's property dismissed.

Orders

  • ['The application to remove the Blackbutt at the rear of 45 Fiddens Wharf Road Killara is upheld.' 'The application to remove the Blackbutt at the rear of 43 Fiddens Wharf Road at Killara is dismissed.' 'Within 30 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to...