Golden v French [2022] NSWLEC 1642

Golden v French [2022] NSWLEC 1642

Although one dead Jacaranda root had displaced a stone in the applicant's bushrock retaining wall and thereby engaged s 10(2)(a), the damage was minor, the wall remained fit for purpose, the structure was over 50 years old and affected by normal wear and tear, and the discretionary matters in s 12 did not justify intervention. The applicant did not establish a causal nexus between the tree and historical boundary retaining wall damage, did not establish a likely risk of injury from the tree, and shading or mere branch/root encroachment did not provide relief under Pt 2. The application was therefore refused.

Jurisdiction
Australia
Judgment Date
18 November 2022
Procedural Posture
Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After on Site Hearing
Outcome
Application refused.
Legal Topics
['jacaranda Tree' 'retaining Wall Damage' 'risk of Injury' 'shading and Pruning' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'environmental and Planning Law' 'property Damage'] ['jacaranda Tree' 'retaining Wall Damage' 'risk of Injury' 'shading and Pruning' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After on Site Hearing

Legal Issues

  1. 1 ["Whether the Jacaranda tree caused, is causing, or is likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006." 'Whether the Jacaranda tree is likely to cause injury to any person under s 10(2)(b) of the Trees (Disputes between Neighbours) Act 2006.' 'Whether orders should be made for pruning, root cutting and a root barrier, tree removal, or compensation for retaining wall repair.' 'Whether claimed shading of the tennis court or overhanging branches provided a basis for relief under Pt 2 of the Trees (Disputes between Neighbours) Act 2006.']

Ratio Decidendi

Although one dead Jacaranda root had displaced a stone in the applicant's bushrock retaining wall and thereby engaged s 10(2)(a), the damage was minor, the wall remained fit for purpose, the structure was over 50 years old and affected by normal wear and tear, and the discretionary matters in s 12 did not justify intervention. The applicant did not establish a causal nexus between the tree and historical boundary retaining wall damage, did not establish a likely risk of injury from the tree, and shading or mere branch/root encroachment did not provide relief under Pt 2. The application was therefore refused.

Court Disposition

Application refused.

Orders

  • ['The application is refused.']