Duggan v Oldfield [2017] NSWLEC 1660

Duggan v Oldfield [2017] NSWLEC 1660

The tree's trunk was pressing on the external wall of the applicant's bathroom, a structural engineer's report confirmed that pressure from the tree's growth caused internal and external damage requiring partial rebuilding, and the damage was confirmed on site. The Court was satisfied under s 10(2)(a) that the tree had caused, was causing, and would continue to cause damage to the applicant's property. Given the proximity of the tree to the applicant's property and the absence of practicable means of abating or avoiding future damage, removal was ordered.

Jurisdiction
Australia
Judgment Date
20 November 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Orders Made
Outcome
Tree removal ordered.
Legal Topics
['damage to Property From Tree Growth' 'potential Injury From Tree Failure' 'tree Removal Orders' 'commissioner Jurisdiction as to Costs']
['trees Disputes Between Neighbours' 'property Law'] ['damage to Property From Tree Growth' 'potential Injury From Tree Failure' 'tree Removal Orders' 'commissioner Jurisdiction as to Costs']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the Eucalyptus saligna on the respondent's property has caused, is causing, or is likely in the near future to cause damage to the applicant's property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree is likely to cause injury to any person within s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether orders should be made requiring removal of the tree.']

Ratio Decidendi

The tree's trunk was pressing on the external wall of the applicant's bathroom, a structural engineer's report confirmed that pressure from the tree's growth caused internal and external damage requiring partial rebuilding, and the damage was confirmed on site. The Court was satisfied under s 10(2)(a) that the tree had caused, was causing, and would continue to cause damage to the applicant's property. Given the proximity of the tree to the applicant's property and the absence of practicable means of abating or avoiding future damage, removal was ordered.

Court Disposition

Tree removal ordered.

Orders

  • ['The respondent is to engage and pay for a suitably qualified and experienced arborist with a minimum qualification in Arboriculture of AQF level 3 and with an appropriate level of public liability insurance to remove the Eucalyptus saligna to a height of at least 400mm above ground and to poison the remaining...