Lewis and anor v Tilney and anor [2009] NSWLEC 1042

Lewis and anor v Tilney and anor [2009] NSWLEC 1042

The Court ordered only the removal of specified deadwood from Tree 3 because that deadwood overhung the applicants' front lawn and constituted a likely risk of injury. The remainder of the application was dismissed because the applicants failed to establish the relevant jurisdictional preconditions for several trees, or because discretionary considerations did not justify orders. The bamboo claim lacked a proper jurisdictional foundation because the Court was not satisfied the bamboo on the applicants' side formed part of the same tree as bamboo on the respondents' land, and in any event no qualifying damage or injury risk was proved. Compensation and removal relating to the Moreton Bay...

Jurisdiction
Australia
Judgment Date
20 February 2009
Procedural Posture
Trees (neighbours) Application Concerning Alleged Damage and Risk From Trees on Adjoining Land / Judgment After Hearing
Outcome
Orders made for removal of deadwood from Tree 3; application otherwise dismissed.
Legal Topics
['bamboo' 'tree Roots' 'damage to Paving and Stormwater Pipes' 'deadwood Overhanging Adjoining Property' 'jurisdictional Preconditions for Tree Orders' 'deposited Leaves, Twigs and Detritus']
['trees Disputes' 'property Law' 'neighbour Disputes'] ['bamboo' 'tree Roots' 'damage to Paving and Stormwater Pipes' 'deadwood Overhanging Adjoining Property' 'jurisdictional Preconditions for Tree Orders' 'deposited Leaves, Twigs and Detritus']

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Procedural Posture

Trees (neighbours) Application Concerning Alleged Damage and Risk From Trees on Adjoining Land / Judgment After Hearing

Legal Issues

  1. 1 ["Whether each of the eight identified trees had caused, was causing, or was likely in the near future to cause damage to the applicants' property, or was a likely risk of injury to any person." "Whether deadwood in Tree 3 overhanging the applicants' property created a likely risk of injury requiring an order for removal." "Whether bamboo on or near the boundary constituted a single tree principally located on the respondents' land and satisfied the jurisdictional requirements for orders." 'Whether the Moreton Bay Fig caused compensable past damage to paving and whether removal or further interference with it should be ordered.' "Whether tree roots damaging terracotta stormwater pipes were proved to come from the Lilly Pilly or another identified tree on the respondents' land." 'Whether deposition of leaves, fruit, twigs or other detritus could support orders for interference with or removal of trees.']

Ratio Decidendi

The Court ordered only the removal of specified deadwood from Tree 3 because that deadwood overhung the applicants' front lawn and constituted a likely risk of injury. The remainder of the application was dismissed because the applicants failed to establish the relevant jurisdictional preconditions for several trees, or because discretionary considerations did not justify orders. The bamboo claim lacked a proper jurisdictional foundation because the Court was not satisfied the bamboo on the applicants' side formed part of the same tree as bamboo on the respondents' land, and in any event no qualifying damage or injury risk was proved. Compensation and removal relating to the Moreton Bay...

Court Disposition

Orders made for removal of deadwood from Tree 3; application otherwise dismissed.

Orders

  • ["All deadwood in the eucalyptus tree identified as Tree 3 in the diagram appended to this decision, being deadwood greater than 20 mm in diameter at its point of attachment and overhanging Mr and Mrs Lewis's property at any point from the point of attachment of the deadwood to the tree, is to be removed at the...