Dean v Ellsworth [2010] NSWLEC 1032

Dean v Ellsworth [2010] NSWLEC 1032

The trees have contributed to damage to the driveway, but the age and construction of the driveway are considered the main causes. There is insufficient evidence that the trees will cause damage to underground services or pose an unacceptable risk of injury to persons. Orders for removal are not warranted, but an order for partial compensation for driveway repairs is appropriate.

Jurisdiction
Australia
Judgment Date
16 February 2010
Procedural Posture
Trees (neighbours) Application / Final Judgment
Outcome
Application to remove the trees dismissed; partial orders for repair and compensation granted.
Legal Topics
['damage to Property' 'compensation' 'orders for Repair']
['environmental Law' 'property Law'] ['damage to Property' 'compensation' 'orders for Repair']

Case Brief

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Procedural Posture

Trees (neighbours) Application / Final Judgment

Legal Issues

  1. 1 ["Whether the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants' property" 'Whether the trees pose a risk of injury to persons' 'Entitlement to compensation for damage and repair of driveway']

Ratio Decidendi

The trees have contributed to damage to the driveway, but the age and construction of the driveway are considered the main causes. There is insufficient evidence that the trees will cause damage to underground services or pose an unacceptable risk of injury to persons. Orders for removal are not warranted, but an order for partial compensation for driveway repairs is appropriate.

Court Disposition

Application to remove the trees dismissed; partial orders for repair and compensation granted.

Orders

  • ['Application to remove trees is dismissed.' 'Application for compensation for damage caused by tree not subject to application is dismissed.' 'Applicants to obtain three quotes for repair of two sections of the driveway adjacent to the two trees.' 'Quotes to include removal and replacement of asphalt and base to a...