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Marsh v McMoore [2012] NUHC 5 (10 February 2012)

Type of court
National - higher court
Date
Feb 10, 2012
Source
UNEP, InforMEA
Court name
High Court of Niue
Judge
Isaac W.
Reference number
NUHC 5
Language
English
Subject
Land & soil
Abstract

In this case, the Plaintiff seeks the removal of a kapok tree by the Public Works Department situated on the land of the Defendant. Plaintiff argues this tree is a private nuisance that is interfering with the peaceful enjoyment of their property due to "intense flowering" and the danger of the tree's possible collapse during a cyclone. Defendant alleges the Kapok tree is a valuable natural resource due to its traditional cultural value, role in reducing importation of synthetically manufactured goods, and ecosystem services it provides to local flora and fauna. The court first determined that the principle of res judicata did not apply from an earlier dispute over the property. The court then found that the Plaintiff did not meet the burden of proving the kapok tree was a private nuisance that "so substantial and unreasonable that it exceeds the bounds of normal give and take that is expected of neighbours." The court held that the infrequency with which the tree blossoms, unlikeliness of its collapse, and lack of evidence presented by the defendant failed to satisfy the substantial interference threshold. As a result, the request for the removal of the kapok tree was dismissed.

(Source: World Legal Information Institute (WLII), http://www.worldlii.org/cgi-bin/sinodisp/paclii/nu/cases/NUHC/2012/5.html?query=natural%20resources, last accessed 06/06/2018)

Full text
5.html
Website
www.worldlii.org