Duxbury v Hewitt [2016] NSWLEC 1291

Duxbury v Hewitt [2016] NSWLEC 1291

The evidence did not establish to the required standard that the respondent's tree had caused, is causing, or is likely to cause compensable damage to the applicant's property or serious injury to persons. The only justified order was for periodic removal of dead wood to mitigate future risk of property damage from falling branches.

Jurisdiction
Australia
Judgment Date
13 July 2016
Procedural Posture
Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination Judgment
Outcome
Application for removal and compensation dismissed; orders made for periodic removal of dead wood by respondent at their expense.
Legal Topics
['tree Disputes' 'neighbour Disputes' 'damages to Property' 'injury From Tree' 'periodic Maintenance Orders']
['property Law' 'environmental Law'] ['tree Disputes' 'neighbour Disputes' 'damages to Property' 'injury From Tree' 'periodic Maintenance Orders']

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Procedural Posture

Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination Judgment

Legal Issues

  1. 1 ["Whether the tree has caused or is likely to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006" 'Whether the tree is likely to cause injury to any person' 'Whether compensation or removal of the tree should be ordered']

Ratio Decidendi

The evidence did not establish to the required standard that the respondent's tree had caused, is causing, or is likely to cause compensable damage to the applicant's property or serious injury to persons. The only justified order was for periodic removal of dead wood to mitigate future risk of property damage from falling branches.

Court Disposition

Application for removal and compensation dismissed; orders made for periodic removal of dead wood by respondent at their expense.

Orders

  • ['The application to remove the tree is dismissed.' 'The application for compensation is dismissed.' "The respondent is to engage and pay for an arborist with a minimum AQF level 3 qualification to remove all dead wood of 30mm or more in diameter at its base from all parts of the canopy overhanging the applicant's...