Russell v Parsons [2009] NSWLEC 1026

Russell v Parsons [2009] NSWLEC 1026

The Cypress tree satisfied the statutory test because it had caused damage and, given included bark, prior branch failure, canopy gap, contact with powerlines and its location near access areas, was likely to cause injury; Mrs Parsons had adequate notice of likely damage, so compensation for the house insurance excess, Daihatsu damage and relevant fence damage was warranted. The Gum tree stump and roots were a tree on adjoining land for the Act, and the Gum tree caused fence damage that should have been observed and avoided, warranting stump clearance and fence repair compensation. Although a branch from the Gum tree probably caused the Toyota dent, the only repair quotation was...

Jurisdiction
Australia
Judgment Date
06 February 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 for Tree Removal and Compensation for Property Damage / Written Judgment After on Site Hearing
Outcome
Application upheld in part.
Legal Topics
['tree Removal' 'neighbouring Land' 'damage to House, Fence and Motor Vehicles' 'risk of Injury From Trees' 'service of Application Documents' 'costs and Expenses']
['land and Environment' 'trees (neighbours) Disputes' 'property Damage Compensation'] ['tree Removal' 'neighbouring Land' 'damage to House, Fence and Motor Vehicles' 'risk of Injury From Trees' 'service of Application Documents' 'costs and Expenses']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 for Tree Removal and Compensation for Property Damage / Written Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether the Cypress tree was likely to cause injury and should be removed.' 'Whether the falling branch of the Cypress tree caused compensable damage to the house, dividing fence and Daihatsu car.' 'Whether the Gum tree caused compensable damage to the dividing fence.' 'Whether a branch from the Gum tree caused compensable damage to the Toyota car.' 'Whether compensation could be ordered for obtaining quotations, Court application costs and lost wages.' 'Whether service and procedural fairness issues prevented the hearing from proceeding.']

Ratio Decidendi

The Cypress tree satisfied the statutory test because it had caused damage and, given included bark, prior branch failure, canopy gap, contact with powerlines and its location near access areas, was likely to cause injury; Mrs Parsons had adequate notice of likely damage, so compensation for the house insurance excess, Daihatsu damage and relevant fence damage was warranted. The Gum tree stump and roots were a tree on adjoining land for the Act, and the Gum tree caused fence damage that should have been observed and avoided, warranting stump clearance and fence repair compensation. Although a branch from the Gum tree probably caused the Toyota dent, the only repair quotation was...

Court Disposition

Application upheld in part.

Orders

  • ['The Cypress tree situated on the western side of the front yard of 11 Balcolyn Street, Balcolyn shall be removed.' 'The stump of the Gum tree situated on the western side of the front yard shall be removed or cut back to be at least 100 mm clear of the proper alignment of the dividing fence.' "The works in orders...