Ekermawi v Bennett [2009] NSWLEC 1398

Ekermawi v Bennett [2009] NSWLEC 1398

The evidence did not satisfy the tests in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. The tree appeared healthy, had no obvious structural defects, had been recently pruned, did not overhang the applicant's property, and was located at a significant distance from the applicant's house. The alleged car damage occurred before the respondents took possession, the compensation claim was withdrawn, and the evidence did not establish that leaves from the tree caused the house damage or that the tree posed a relevant risk of injury. The jurisdiction to make orders was therefore not enlivened.

Jurisdiction
Australia
Judgment Date
26 November 2009
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Seeking Removal of a Tree and Compensation / Ex Tempore Judgment After on Site Hearing
Outcome
Application dismissed.
Legal Topics
['removal of Tree' 'compensation for Alleged Property Damage' 'risk of Injury From Tree' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']
['trees Disputes' 'environmental and Planning Law' 'property Damage'] ['removal of Tree' 'compensation for Alleged Property Damage' 'risk of Injury From Tree' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Seeking Removal of a Tree and Compensation / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the tree was a risk of injury to persons.' 'Whether the dropping of leaves or small branchlets justified removal of or intervention with the tree.' 'Whether compensation could be awarded against the respondents for alleged damage occurring before they took possession of the property.']

Ratio Decidendi

The evidence did not satisfy the tests in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. The tree appeared healthy, had no obvious structural defects, had been recently pruned, did not overhang the applicant's property, and was located at a significant distance from the applicant's house. The alleged car damage occurred before the respondents took possession, the compensation claim was withdrawn, and the evidence did not establish that leaves from the tree caused the house damage or that the tree posed a relevant risk of injury. The jurisdiction to make orders was therefore not enlivened.

Court Disposition

Application dismissed.

Orders

  • ['The application in its entirety is dismissed.']