Freeman v Dillon [2012] NSWLEC 1057

Freeman v Dillon [2012] NSWLEC 1057

Most alleged damage and injury risks were not proved to have the required causal nexus with the respondents' trees, and several concerns related to pre-existing conditions, property not on the applicant's land, ordinary leaf fall, or matters outside jurisdiction. However, the applicant's excavation for a new stormwater drainage system severed structural roots and compromised the stability of ten trees, making removal prudent; because that risk was caused by the applicant's acts, she must reimburse the respondents for removal and contribute to replacement costs.

Jurisdiction
Australia
Judgment Date
15 March 2012
Procedural Posture
Class 2 Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application to remove trees upheld in part; applicant to pay the cost of removal and replacement of ten trees.
Legal Topics
['damage to Property by Trees' 'risk of Injury From Trees' 'causation Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006' 'costs of Tree Removal and Replacement' 'pre Existing Property Condition']
['land and Environment' 'tree Disputes Between Neighbours'] ['damage to Property by Trees' 'risk of Injury From Trees' 'causation Under S 10(2) of the Trees (disputes Between Neighbours) Act 2006' 'costs of Tree Removal and Replacement' 'pre Existing Property Condition']

Case Brief

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Procedural Posture

Class 2 Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether trees on the respondents' land had caused, were causing, or were 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." 'Whether the trees were likely to cause injury to any person.' "Whether the Court had jurisdiction to make orders concerning a timber fence located on the respondents' land." "Whether the applicant's excavation for a new stormwater drainage system compromised the stability of trees and justified their removal at the applicant's cost." "Whether bushfire risk and future compensation were within the Court's jurisdiction under the Trees (Disputes Between Neighbours) Act 2006."]

Ratio Decidendi

Most alleged damage and injury risks were not proved to have the required causal nexus with the respondents' trees, and several concerns related to pre-existing conditions, property not on the applicant's land, ordinary leaf fall, or matters outside jurisdiction. However, the applicant's excavation for a new stormwater drainage system severed structural roots and compromised the stability of ten trees, making removal prudent; because that risk was caused by the applicant's acts, she must reimburse the respondents for removal and contribute to replacement costs.

Court Disposition

Application to remove trees upheld in part; applicant to pay the cost of removal and replacement of ten trees.

Orders

  • ['The application to remove trees is upheld in part.' 'By 30 June 2012, trees T2 to T11 in the report of Mr John Lang dated 23 February 2012 are to be removed and the stumps ground to not less than 300 mm below existing ground level. The work is to be carried out by an AQF level 3 arborist, with a minimum of $10M...