Breen & Anor v Caronna & Anor (No 2) [2008] NSWLEC 1424

Breen & Anor v Caronna & Anor (No 2) [2008] NSWLEC 1424

The Court found, based on inspection and evidence, that the Coastal Redwood and Golden Cypress caused damage to the Breens' driveway and satisfied s 10(2)(a) of the Act. Accordingly, orders for their removal, compensatory planting, compensation, and access were appropriate. The Mexican Pine did not satisfy the jurisdictional test or, if it had, its removal was not warranted as a matter of discretion.

Jurisdiction
Australia
Judgment Date
20 October 2008
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment After Hearing on Merits Following Unsuccessful Notice of Motion for Consent Orders
Outcome
Orders made by consent (as amended) for removal of two trees, compensatory planting, compensation for driveway damage, and access arrangements; no order for removal of the Mexican Pine.
Legal Topics
['tree Disputes Between Neighbours' 'discretion in Orders Under Trees (disputes Between Neighbours) Act 2006' 'jurisdictional Tests for Tree Removal' 'compensation for Property Damage']
['property Law' 'environmental Law'] ['tree Disputes Between Neighbours' 'discretion in Orders Under Trees (disputes Between Neighbours) Act 2006' 'jurisdictional Tests for Tree Removal' 'compensation for Property Damage']

Case Brief

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment After Hearing on Merits Following Unsuccessful Notice of Motion for Consent Orders

Legal Issues

  1. 1 ['Whether jurisdictional tests under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 are satisfied regarding the three trees' 'Whether the Court should exercise discretion under s 9 to order removal of any of the trees' 'Whether compensation and replanting orders are appropriate']

Ratio Decidendi

The Court found, based on inspection and evidence, that the Coastal Redwood and Golden Cypress caused damage to the Breens' driveway and satisfied s 10(2)(a) of the Act. Accordingly, orders for their removal, compensatory planting, compensation, and access were appropriate. The Mexican Pine did not satisfy the jurisdictional test or, if it had, its removal was not warranted as a matter of discretion.

Court Disposition

Orders made by consent (as amended) for removal of two trees, compensatory planting, compensation for driveway damage, and access arrangements; no order for removal of the Mexican Pine.

Orders

  • ['Removal of the Coastal Redwood and Golden Cypress from the Caronnas’ property.' "Compensatory planting of two Kings Park variety callistemons on the Caronnas' property." 'Compensation to the Breens for driveway damage (amount not specified).' 'Access granted to the Breens for removal of trees, with reasonable...