Tho v New Horizon Health Care [2021] NSWLEC 1499

Tho v New Horizon Health Care [2021] NSWLEC 1499

The application was refused because, although the applicants had made reasonable efforts to reach agreement, they did not provide sufficient evidence that the respondent's tree had caused the alleged property damage or was likely in the near future to cause damage or injury. The Court accepted that the respondent's arborist found the tree healthy and without structural defects, and considered that the alleged damage to the fence, cracked tiles, and raised drain grate did not justify the requested orders on the evidence before the Court.

Jurisdiction
Australia
Judgment Date
19 August 2021
Procedural Posture
Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 Seeking Removal of a Neighbouring Tree and Compensation / Principal Judgment After Hearing
Outcome
The application is refused.
Legal Topics
['neighbouring Tree' 'damage to Property' 'risk of Damage or Injury' 'reasonable Efforts to Reach Agreement' 'expert Evidence' 'compensation']
['trees Disputes Between Neighbours' 'land and Environment'] ['neighbouring Tree' 'damage to Property' 'risk of Damage or Injury' 'reasonable Efforts to Reach Agreement' 'expert Evidence' 'compensation']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 Seeking Removal of a Neighbouring Tree and Compensation / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicants made reasonable effort to reach agreement with the tree owner before orders were made.' "Whether the Sydney Blue Gum caused damage to the applicants' property, including fence damage, cracked floor tiles, and a raised drain grate." "Whether the tree was likely in the near future to cause damage to the applicants' property or injury to any person." 'Whether the evidence justified orders for removal of the tree or compensation.']

Ratio Decidendi

The application was refused because, although the applicants had made reasonable efforts to reach agreement, they did not provide sufficient evidence that the respondent's tree had caused the alleged property damage or was likely in the near future to cause damage or injury. The Court accepted that the respondent's arborist found the tree healthy and without structural defects, and considered that the alleged damage to the fence, cracked tiles, and raised drain grate did not justify the requested orders on the evidence before the Court.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.']