Marsh & anor v Griffin & anor [2013] NSWLEC 1213

Marsh & anor v Griffin & anor [2013] NSWLEC 1213

The Court found that only Tree 1 (easternmost Cupressus macrocarpa) had caused or was likely to cause damage to the applicants' property, specifically to the fence and pathway, satisfying s 10(2) of the Act. The removal of Tree 1 was necessary to prevent further damage; however, no sufficient basis was made for intervention with Trees 2 or 3 as the tests in s 10(2) were not met in relation to those trees. The requested rectification to the fence and pathway was largely unwarranted due to the minor nature of existing damage and functional status of the property.

Jurisdiction
Australia
Judgment Date
13 November 2013
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment
Outcome
Application upheld in part.
Legal Topics
['tree Disputes' 'damage to Property' 'neighbourhood Disputes']
['environmental Law' 'property Law'] ['tree Disputes' 'damage to Property' 'neighbourhood Disputes']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment

Legal Issues

  1. 1 ["Whether trees on the respondents' property have caused or are likely to cause damage to the applicants' property or injury to persons, within the meaning of s 10(2) of the Trees (Disputes Between Neighbours) Act 2006" 'What orders, if any, should be made to remedy or prevent such damage or injury']

Ratio Decidendi

The Court found that only Tree 1 (easternmost Cupressus macrocarpa) had caused or was likely to cause damage to the applicants' property, specifically to the fence and pathway, satisfying s 10(2) of the Act. The removal of Tree 1 was necessary to prevent further damage; however, no sufficient basis was made for intervention with Trees 2 or 3 as the tests in s 10(2) were not met in relation to those trees. The requested rectification to the fence and pathway was largely unwarranted due to the minor nature of existing damage and functional status of the property.

Court Disposition

Application upheld in part.

Orders

  • ['Within 30 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the easternmost Cupressus sp (T1) to ground level, including root and stump grinding as detailed.' 'Temporary removal and reinstatement of one fence panel...