McGee & anor v Qiu & anor [2016] NSWLEC 1117

McGee & anor v Qiu & anor [2016] NSWLEC 1117

On the site observations and the engineer's report, despite limitations in that report, the Court was satisfied to the extent required by s 10(2) that the Jacaranda had caused damage to the applicants' wall and would continue to do so if not removed. Because the respondents already had council permission to remove the tree and the parties agreed to apportion rectification costs, the Court made agreed orders requiring removal of the tree, wall works, and reimbursement by the respondents of 30% of the relevant rectification costs.

Jurisdiction
Australia
Judgment Date
01 April 2016
Procedural Posture
Class 2 Tree Dispute Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Application Granted in Part
Outcome
Application granted in part.
Legal Topics
['damage to Property' 'risk of Injury' 'retaining Wall Damage' 'tree Removal' 'compensation Apportionment' 'costs Jurisdiction']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court Proceedings'] ['damage to Property' 'risk of Injury' 'retaining Wall Damage' 'tree Removal' 'compensation Apportionment' 'costs Jurisdiction']

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Procedural Posture

Class 2 Tree Dispute Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Application Granted in Part

Legal Issues

  1. 1 ["Whether the Jacaranda tree caused, was causing, or was likely in the near future to cause damage to the applicants' property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree was likely to cause injury to any person.' 'What amount of compensation was payable by the respondents for rectification of the damaged wall.' 'Whether the Commissioner could order payment of legal costs, expert report costs, application fees and similar costs.']

Ratio Decidendi

On the site observations and the engineer's report, despite limitations in that report, the Court was satisfied to the extent required by s 10(2) that the Jacaranda had caused damage to the applicants' wall and would continue to do so if not removed. Because the respondents already had council permission to remove the tree and the parties agreed to apportion rectification costs, the Court made agreed orders requiring removal of the tree, wall works, and reimbursement by the respondents of 30% of the relevant rectification costs.

Court Disposition

Application granted in part.

Orders

  • ['By 19 April 2016, the Respondents are to engage and pay for an arborist with a minimum AQF Level 3 qualification in Arboriculture to remove the Jacaranda Tree identified at T1 on the plan annexed to the Tree Dispute Claim Details filed 22 February 2016, located at the north-eastern corner of 19 Euryalus Street,...