Dwyer v Woischuk [2008] NSWLEC 46

Dwyer v Woischuk [2008] NSWLEC 46

The Court was not satisfied that the tree was a significant cause of the driveway damage, considered the fence damage minor and easily repairable, found that collapse of a trunk was likely within 10 years but not in the near future, and considered the overhang, leaf litter and injury risk insufficient to justify Court intervention. The application was therefore dismissed, although the parties' agreement to remove the tree was noted.

Jurisdiction
Australia
Judgment Date
17 January 2008
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Removal of a Tree / Judgment After Hearing
Outcome
Application dismissed; parties' agreement to remove the tree noted.
Legal Topics
['removal of a Tree' 'neighbour Application' 'tree Damage to Property' 'risk of Injury From a Tree' 'overhanging Branches']
['trees Disputes Between Neighbours' 'property Law'] ['removal of a Tree' 'neighbour Application' 'tree Damage to Property' 'risk of Injury From a Tree' 'overhanging Branches']

Case Brief

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Removal of a Tree / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Cypress pine had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the Cypress pine was likely to cause injury to any person.' 'Whether any damage or risk was sufficiently serious to warrant Court intervention and, if so, what orders should be made.']

Ratio Decidendi

The Court was not satisfied that the tree was a significant cause of the driveway damage, considered the fence damage minor and easily repairable, found that collapse of a trunk was likely within 10 years but not in the near future, and considered the overhang, leaf litter and injury risk insufficient to justify Court intervention. The application was therefore dismissed, although the parties' agreement to remove the tree was noted.

Court Disposition

Application dismissed; parties' agreement to remove the tree noted.

Orders

  • ['The application is dismissed.' 'The tree shall be cut down to within 0.3 m of the ground before 31 March 2008 by a contractor agreed to by both parties and holding suitable insurances.' 'Mrs Dwyer shall pay half the quoted cost to cut down and remove the tree.' 'If Mr Woischuk wishes, he may have the tree left on...