McDonnell v Harrison [2012] NSWLEC 1291

McDonnell v Harrison [2012] NSWLEC 1291

No exceptional circumstances were found to justify removal of the trees under the Act. The Jacaranda and palms' aesthetic damage to the fence was not sufficient to balance against their environmental benefit; no functional damage was established, nor was there sufficient evidence of root-related damage to paving or of risk from the Lillypilly within the statutory period. Only the inspection fee was recoverable as reasonable expense.

Jurisdiction
Australia
Judgment Date
21 September 2012
Procedural Posture
Class 2 / Principal Judgment
Outcome
Application for removal of trees refused; partial reimbursement for inspection fee ordered.
Legal Topics
['trees (disputes Between Neighbours)' 'damage to Property' 'compensation']
['environmental Law' 'property Law'] ['trees (disputes Between Neighbours)' 'damage to Property' 'compensation']

Case Brief

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Procedural Posture

Class 2 / Principal Judgment

Legal Issues

  1. 1 ['Whether the Jacaranda, Lillypilly, and two palm trees caused, are causing, or are likely to cause damage or injury within the meaning of the Trees (Disputes Between Neighbours) Act 2006' 'Whether removal of any of the trees is warranted under the statutory provisions' 'Whether compensation for claimed damage and expenses should be awarded']

Ratio Decidendi

No exceptional circumstances were found to justify removal of the trees under the Act. The Jacaranda and palms' aesthetic damage to the fence was not sufficient to balance against their environmental benefit; no functional damage was established, nor was there sufficient evidence of root-related damage to paving or of risk from the Lillypilly within the statutory period. Only the inspection fee was recoverable as reasonable expense.

Court Disposition

Application for removal of trees refused; partial reimbursement for inspection fee ordered.

Orders

  • ['The application to remove a Jacaranda, a Lillypilly and two Bangalow Palms is refused.' 'The respondents are ordered to pay the applicant the sum of $100 within 14 days as reimbursement of the inspection fees for the tree.']