Dooley & anor v Nevell [2007] NSWLEC 715

Dooley & anor v Nevell [2007] NSWLEC 715

The Court refused removal of the trees because ordinary leaf and bark fall, speculative root damage, termite risk, and alleged instability did not justify removal, and damage or risk caused by animals, birds or insects attracted to a tree is outside the Act. Jurisdiction was enlivened only by proven past roof damage from a falling branch and likely near-future damage from deadwood or the dead trunk element of T4, making pruning and periodic deadwood removal the appropriate orders rather than complete removal.

Jurisdiction
Australia
Judgment Date
23 October 2007
Procedural Posture
Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment After Hearing
Outcome
Limited orders made under s 9 of the Trees (Disputes Between Neighbours) Act 2006; complete removal of the trees refused.
Legal Topics
['tree Removal Application' 'falling Leaves, Bark and Twigs' 'tree Roots' 'termites and Animals, Birds or Insects' 'falling Branches and Deadwood' 'tree Stability' 'pruning Orders']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Jurisdiction'] ['tree Removal Application' 'falling Leaves, Bark and Twigs' 'tree Roots' 'termites and Animals, Birds or Insects' 'falling Branches and Deadwood' 'tree Stability' 'pruning Orders']

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Procedural Posture

Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether six trees on the respondent's property should be removed under the Trees (Disputes Between Neighbours) Act 2006." 'Whether deposition of leaves, bark and small twigs was sufficient to justify orders.' "Whether tree roots were causing or likely in the near future to cause damage to the applicants' house." 'Whether termites or other animals, birds or insects attracted to or hosted by a tree can found jurisdiction under the Act.' 'Whether falling branches and deadwood had caused or were likely in the near future to cause property damage.' 'Whether water pooling or the water table made the trees structurally unstable.' 'Whether any major branch or trunk element was likely to fail and cause damage or injury.']

Ratio Decidendi

The Court refused removal of the trees because ordinary leaf and bark fall, speculative root damage, termite risk, and alleged instability did not justify removal, and damage or risk caused by animals, birds or insects attracted to a tree is outside the Act. Jurisdiction was enlivened only by proven past roof damage from a falling branch and likely near-future damage from deadwood or the dead trunk element of T4, making pruning and periodic deadwood removal the appropriate orders rather than complete removal.

Court Disposition

Limited orders made under s 9 of the Trees (Disputes Between Neighbours) Act 2006; complete removal of the trees refused.

Orders

  • ['Remove all deadwood greater than 40 mm in diameter at the trunk junction from T3, T4 and T5, with the deadwood removed at its trunk junction.' 'Prune the dead trunk element of T4, commencing at about 5 m above the ground, back to the collar of the main trunk below.' 'All described work is to be completed by the...