Gordon v Sheriff [2017] NSWLEC 1212

Gordon v Sheriff [2017] NSWLEC 1212

The applicant did not establish, on the evidence, that the subject trees had caused, are causing, or are likely in the near future to cause actionable damage to the property or injury to persons as required by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006; mere inconvenience or required maintenance from fallen leaves does not constitute damage; only a minor remedy was ordered for removal of deadwood representing a predictable failure risk.

Jurisdiction
Australia
Judgment Date
26 April 2017
Procedural Posture
Tree Dispute Application / First Instance Hearing and Determination
Outcome
Application to remove three trees dismissed; respondent ordered to remove specific dead branch within 14 days.
Legal Topics
['trees and Neighbours' 'damage to Property' 'risk of Injury' "court's Jurisdiction Under Trees (disputes Between Neighbours) Act 2006"]
['environmental Law' 'property Law'] ['trees and Neighbours' 'damage to Property' 'risk of Injury' "court's Jurisdiction Under Trees (disputes Between Neighbours) Act 2006"]

Case Brief

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Procedural Posture

Tree Dispute Application / First Instance Hearing and Determination

Legal Issues

  1. 1 ["Whether the trees have caused or are likely to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006" 'Whether the trees are likely to cause injury to any person under s 10(2)(b) of the Act' 'Whether the evidence is sufficient to warrant removal of the trees']

Ratio Decidendi

The applicant did not establish, on the evidence, that the subject trees had caused, are causing, or are likely in the near future to cause actionable damage to the property or injury to persons as required by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006; mere inconvenience or required maintenance from fallen leaves does not constitute damage; only a minor remedy was ordered for removal of deadwood representing a predictable failure risk.

Court Disposition

Application to remove three trees dismissed; respondent ordered to remove specific dead branch within 14 days.

Orders

  • ["The application to remove three trees growing on the respondent's property is dismissed." "Within 14 days of the date of this judgment, the respondent is to remove, or have removed, the dead branch caught in one of the applicant's palm trees growing at the rear of the applicant's property."]