Yin v D'Hondt & anor [2014] NSWLEC 1040

Yin v D'Hondt & anor [2014] NSWLEC 1040

The Court was satisfied under s 10(2) that the Bangalay had caused damage to the applicant's property, particularly the garden edging, and was likely to cause injury because of falling dead wood and the risk of trunk failure. The weak attachment of the three trunks outweighed the tree's health, landscape value and ecological amenity, so removal at the respondents' expense was appropriate. Because removal required dismantling the fence, and the tree had displaced it, the respondents were also to reinstate the wire dividing fence and footings. Other claimed rectification or compensation was refused because causation, jurisdiction, timely notice or compensable damage was not established, or...

Jurisdiction
Australia
Judgment Date
06 March 2014
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Orders
Outcome
Application upheld in part.
Legal Topics
['damage Caused by Tree Roots' 'risk of Injury From Trees' 'tree Removal Orders' 'notice and Discretionary Refusal of Compensation' 'court Jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'property Damage' 'neighbour Disputes'] ['damage Caused by Tree Roots' 'risk of Injury From Trees' 'tree Removal Orders' 'notice and Discretionary Refusal of Compensation' 'court Jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the Eucalyptus botryoides had caused, was causing, or was likely in the near future to cause damage to the applicant's property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree was likely to cause injury to any person within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the respondents should be ordered to remove the tree and reinstate the wire dividing fence and footings.' 'Whether the respondents should be ordered to rectify the concrete block wall, concrete path, garden bed, sandstone edging and other claimed damage at their expense.']

Ratio Decidendi

The Court was satisfied under s 10(2) that the Bangalay had caused damage to the applicant's property, particularly the garden edging, and was likely to cause injury because of falling dead wood and the risk of trunk failure. The weak attachment of the three trunks outweighed the tree's health, landscape value and ecological amenity, so removal at the respondents' expense was appropriate. Because removal required dismantling the fence, and the tree had displaced it, the respondents were also to reinstate the wire dividing fence and footings. Other claimed rectification or compensation was refused because causation, jurisdiction, timely notice or compensable damage was not established, or...

Court Disposition

Application upheld in part.

Orders

  • ['The application is upheld in part.' "The respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance cover, to remove the Eucalyptus botryoides (Bangalay) at the rear of the respondents' property. The stump is to be ground to a minimum depth of 300mm and to a radius of 500mm from the...