Allen v Kalokotos [2019] NSWLEC 1538

Allen v Kalokotos [2019] NSWLEC 1538

Although the applicants satisfied the notice and reasonable-effort requirements, the Court was not satisfied that the trees had caused, were causing, or were likely in the near future to cause property damage, or were likely to cause injury. Debris and encroachment did not constitute damage under the Act, there was no evidence that T2 caused fence damage, no evidence that T1 roots caused the concrete cracking, and no evidence that T1 posed a risk of injury greater than an acceptable low risk. Because s 10 was not satisfied, the Court had no jurisdiction to make orders under s 7, and the application was dismissed.

Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Class 2 Tree Dispute Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination; Principal Judgment
Outcome
The application is dismissed.
Legal Topics
['tree Removal' 'damage to Property' 'risk of Injury' 'tree Debris and Maintenance' 'boundary Fence Damage' 'tree Root Damage' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']
['trees (disputes Between Neighbours)' 'property Law' 'land and Environment Court Jurisdiction'] ['tree Removal' 'damage to Property' 'risk of Injury' 'tree Debris and Maintenance' 'boundary Fence Damage' 'tree Root Damage' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Tree Dispute Application Under S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination; Principal Judgment

Legal Issues

  1. 1 ['Whether the applicants satisfied the jurisdictional requirements for an order under s 7 of Part 2 of the Trees (Disputes Between Neighbours) Act 2006.' "Whether T1 or T2 caused, were causing, or were likely in the near future to cause damage to the applicants' property." 'Whether T1 or T2 were likely to cause injury to any person.' 'Whether dropping debris, encroaching branches, alleged fence damage, or alleged concrete cracking justified orders for removal of the trees.']

Ratio Decidendi

Although the applicants satisfied the notice and reasonable-effort requirements, the Court was not satisfied that the trees had caused, were causing, or were likely in the near future to cause property damage, or were likely to cause injury. Debris and encroachment did not constitute damage under the Act, there was no evidence that T2 caused fence damage, no evidence that T1 roots caused the concrete cracking, and no evidence that T1 posed a risk of injury greater than an acceptable low risk. Because s 10 was not satisfied, the Court had no jurisdiction to make orders under s 7, and the application was dismissed.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']