Lo v Hepworth [2009] NSWLEC 1382

Lo v Hepworth [2009] NSWLEC 1382

Trees 1 to 5 contained dead wood that could cause damage to property or pose a risk of injury to people, so s10(2) was satisfied and the Court's jurisdiction was enlivened for those trees. The bamboo may have contributed in the past to fence damage, but the evidence was inconclusive and there was no likelihood of damage to the fence in the near future, so none of the s10(2) tests was satisfied for bamboo and no order could be made for its removal.

Jurisdiction
Australia
Judgment Date
16 November 2009
Procedural Posture
Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application upheld in part; bamboo removal refused; compensation and pruning-related orders made.
Legal Topics
['overhanging Branches' 'dead Wood' 'bamboo' 'risk of Damage to Property' 'risk of Injury to Persons' 'compensation' 'pruning Orders']
['trees (neighbours)' 'land and Environment Court'] ['overhanging Branches' 'dead Wood' 'bamboo' 'risk of Damage to Property' 'risk of Injury to Persons' 'compensation' 'pruning Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether trees 1 to 5 had caused, were causing, or were likely in the near future to cause damage to the applicants' property or were a risk of injury to persons under s10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether bamboo on the respondent's property satisfied the tests under s10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the applicants should receive $100 compensation for insurance excess paid after a branch damaged their clothesline.' 'What pruning and cost-sharing orders should be made.']

Ratio Decidendi

Trees 1 to 5 contained dead wood that could cause damage to property or pose a risk of injury to people, so s10(2) was satisfied and the Court's jurisdiction was enlivened for those trees. The bamboo may have contributed in the past to fence damage, but the evidence was inconclusive and there was no likelihood of damage to the fence in the near future, so none of the s10(2) tests was satisfied for bamboo and no order could be made for its removal.

Court Disposition

Application upheld in part; bamboo removal refused; compensation and pruning-related orders made.

Orders

  • ['The application is upheld in part.' 'The application for removal of the bamboo is refused.' 'The application for $100 compensation is upheld and the respondent is to pay the applicants this sum within 21 days of the date of these orders.' 'The respondent is to engage an AQF level 3 arborist with appropriate...