Beilharz v Goodwin [2021] NSWLEC 1092

Beilharz v Goodwin [2021] NSWLEC 1092

The applicant did not discharge the evidentiary burden to prove, on the balance of probabilities, that the respondent’s gum trees caused damage to the retaining wall or brush fencing; however, the Court was satisfied that some minor damage to brush fencing was caused by yucca plants, and that dead/hazardous branches in the canopy of the gum trees posed a risk of injury, enlivening the Court's jurisdiction to make limited orders for removal of the yuccas and for pruning of hazardous branches.

Jurisdiction
Australia
Judgment Date
25 February 2021
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Hearing
Outcome
Partial orders granted and application otherwise refused.
Legal Topics
['tree Disputes Between Neighbours' 'damage to Property by Trees' 'court Orders for Tree Removal or Pruning']
['property Law' 'environmental Law'] ['tree Disputes Between Neighbours' 'damage to Property by Trees' 'court Orders for Tree Removal or Pruning']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether respondent's trees caused or are likely to cause damage to applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)" 'Whether the evidence supports orders for removal or pruning of trees or compensation for property damage']

Ratio Decidendi

The applicant did not discharge the evidentiary burden to prove, on the balance of probabilities, that the respondent’s gum trees caused damage to the retaining wall or brush fencing; however, the Court was satisfied that some minor damage to brush fencing was caused by yucca plants, and that dead/hazardous branches in the canopy of the gum trees posed a risk of injury, enlivening the Court's jurisdiction to make limited orders for removal of the yuccas and for pruning of hazardous branches.

Court Disposition

Partial orders granted and application otherwise refused.

Orders

  • ['Application for remedy and prevention of damage to the retaining wall is refused.' 'Application for remedy of damage to brush fencing is refused.' 'Application to prevent further damage to brush fencing is granted; respondent to remove yucca plants T3-T5 within 30 days.' 'Application to prevent injury from falling...