Bailey v Douglass [2018] NSWLEC 1061

Bailey v Douglass [2018] NSWLEC 1061

The tree was healthy and structurally sound, and debris and alleged soil effects did not justify removal. The Court was satisfied that the tree had damaged two fence panels, but the damage was relatively minor and replacement of the fence or removal of the tree was disproportionate. Orders for pruning and repair or adjustment of the affected fence panels were sufficient to address the damage and risk.

Jurisdiction
Australia
Judgment Date
14 February 2018
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Final Extemporaneous Decision After Onsite Hearing
Outcome
The application is upheld.
Legal Topics
['damage to Boundary Fence' 'risk of Injury From Falling Limbs' 'tree Debris' 'pruning Orders' 'fence Repair']
['trees Disputes Between Neighbours' 'property Damage'] ['damage to Boundary Fence' 'risk of Injury From Falling Limbs' 'tree Debris' 'pruning Orders' 'fence Repair']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Final Extemporaneous Decision After Onsite Hearing

Legal Issues

  1. 1 ["Whether the respondents' Camphor Laurel caused damage to the shared boundary fence." 'Whether the tree should be removed and the fence replaced.' 'Whether pruning was appropriate to address deadwood and overhanging limbs.' "Whether debris in the applicants' gutters justified interference with the tree."]

Ratio Decidendi

The tree was healthy and structurally sound, and debris and alleged soil effects did not justify removal. The Court was satisfied that the tree had damaged two fence panels, but the damage was relatively minor and replacement of the fence or removal of the tree was disproportionate. Orders for pruning and repair or adjustment of the affected fence panels were sufficient to address the damage and risk.

Court Disposition

The application is upheld.

Orders

  • ["Within 60 days the respondents are to engage and pay for a suitably qualified and experienced arborist, minimum AQF level 3, with appropriate insurances, to remove deadwood greater than 50 mm in diameter from the tree's crown and reduce limbs over the applicants' property, especially those extending farthest from...