Campbell v Lewis [2007] NSWLEC 332

Campbell v Lewis [2007] NSWLEC 332

The first Grey Gum did not warrant intervention because there was no visible reason to believe the overhanging branch was likely to fail in the foreseeable future and the likely target area was not significantly used, so the statutory tests were not satisfied. Two branches of the second Grey Gum were in decline and posed a significant near-future risk of failure, injury, and damage to the applicant's house, satisfying the statutory tests and justifying removal at the respondents' cost. The applicant proved payment for fence repairs and was entitled to reimbursement of the uninsured half, and the spa upgrade cost was recoverable because replacement required upgraded plant and equipment;...

Jurisdiction
Australia
Judgment Date
31 May 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Trees on Neighbouring Land and Compensation Claim / Ex Tempore Judgment After Hearing
Outcome
Application allowed in part; orders to be made for removal of two branches and payment of compensation, with other claims refused.
Legal Topics
['removal of Tree Branches' 'risk of Injury or Damage From Trees' 'compensation for Property Damage' 'dividing Fences']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment'] ['removal of Tree Branches' 'risk of Injury or Damage From Trees' 'compensation for Property Damage' 'dividing Fences']

Case Brief

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Trees on Neighbouring Land and Compensation Claim / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Court had jurisdiction to deal with the first Grey Gum on the assumption that the majority of its base was located on the respondents' property." 'Whether the first Grey Gum satisfied the tests in s 10(2)(a) or s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006 so as to justify intervention.' "Whether branches of the second Grey Gum were in decline and posed a risk of failure, injury to persons, or significant damage to the applicant's house." 'Whether the applicant should be reimbursed for damage to the dividing fence caused by the failure of the Sydney Peppermint.' 'Whether the applicant should be compensated for claimed spa pool upgrade, labour, materials and deck repair costs.']

Ratio Decidendi

The first Grey Gum did not warrant intervention because there was no visible reason to believe the overhanging branch was likely to fail in the foreseeable future and the likely target area was not significantly used, so the statutory tests were not satisfied. Two branches of the second Grey Gum were in decline and posed a significant near-future risk of failure, injury, and damage to the applicant's house, satisfying the statutory tests and justifying removal at the respondents' cost. The applicant proved payment for fence repairs and was entitled to reimbursement of the uninsured half, and the spa upgrade cost was recoverable because replacement required upgraded plant and equipment;...

Court Disposition

Application allowed in part; orders to be made for removal of two branches and payment of compensation, with other claims refused.

Orders

  • ['Two identified branches on the second Grey Gum are to be removed.' "The removal is to be carried out by an AQF level 3 qualified arborist within 60 days of the date of the Court's orders." "The Court's orders will include a marked photograph clearly identifying the two branches to be removed." "Ray and Brenda...