Dunn v Noel and Anor [2009] NSWLEC 1063

Dunn v Noel and Anor [2009] NSWLEC 1063

Although at least part of the damage satisfied s 10(2)(a), the fence, slab and pier were inadequately constructed, the demonstrated damage was largely aesthetic or cosmetic, and causation was not established for the driveway slab; therefore no compensatory or reconstruction orders were warranted. Deadwood in the Blackbutt did pose a near-future risk of damage to the applicant's property, so orders were made for its removal and ongoing maintenance at the respondents' cost.

Jurisdiction
Australia
Judgment Date
17 February 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Pruning of Trees and Damage to Property / Extempore Judgment and Final Orders
Outcome
Orders made for removal and ongoing management of deadwood in the Blackbutt; no compensatory or reconstruction orders made for the fence, slab, pier or driveway slab.
Legal Topics
['pruning of Trees' 'damage to Property' 'tree Roots' 'deadwood Risk' 'discretionary Orders']
['trees (neighbours)' 'property' 'land and Environment'] ['pruning of Trees' 'damage to Property' 'tree Roots' 'deadwood Risk' 'discretionary Orders']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Pruning of Trees and Damage to Property / Extempore Judgment and Final Orders

Legal Issues

  1. 1 ["Whether trees on the respondents' property caused damage to the applicant's fence, side passage slab, pier and driveway slab" 'Whether any proven damage warranted compensatory or remedial orders' "Whether deadwood in the Blackbutt posed a near-future risk of damage to the applicant's property"]

Ratio Decidendi

Although at least part of the damage satisfied s 10(2)(a), the fence, slab and pier were inadequately constructed, the demonstrated damage was largely aesthetic or cosmetic, and causation was not established for the driveway slab; therefore no compensatory or reconstruction orders were warranted. Deadwood in the Blackbutt did pose a near-future risk of damage to the applicant's property, so orders were made for its removal and ongoing maintenance at the respondents' cost.

Court Disposition

Orders made for removal and ongoing management of deadwood in the Blackbutt; no compensatory or reconstruction orders made for the fence, slab, pier or driveway slab.

Orders

  • ['All deadwood greater than 20 mm in diameter at the point of attachment be removed from the Blackbutt tree within 90 days of the date of this hearing.' 'The removal is to be carried out by an AQF Level 3 arborist with appropriate insurances.' 'The work is to be undertaken by Mr and Mrs Noel at their cost.' 'The...