Muccino & anor v Ring & anor [2013] NSWLEC 1020

Muccino & anor v Ring & anor [2013] NSWLEC 1020

The applicants failed to prove on the evidence that the tree's roots caused paving damage, and no order was made for rectification. The Court was satisfied that the tree had caused damage to one fence panel and that a large branch had previously fallen, thus triggering jurisdiction for orders. However, whole tree removal was not warranted as there was insufficient evidence of ongoing or imminent risk to persons or significant property. Appropriate orders included specific pruning and fence repair, not removal of the tree.

Parties
Applicants: T and S Muccino; Respondents: J and G Ring
Jurisdiction
Australia
Judgment Date
01 February 2013
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Decision After Hearing
Outcome
Application to remove the tree dismissed. Orders made for pruning and for replacement of a fence panel.
Legal Topics
Tree Disputes, Damage to Property, Injury to Persons, Neighbourhood Disputes
Environmental Law Property Law Tree Disputes Damage to Property Injury to Persons Neighbourhood Disputes

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Parties

T and S Muccino

Applicants

J and G Ring

Respondents

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Decision After Hearing

Legal Issues

  1. 1 Whether the tree has caused or is likely to cause damage to property or injury to persons under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.
  2. 2 Whether removal or pruning of the tree, or rectification of damage, should be ordered.

Ratio Decidendi

The applicants failed to prove on the evidence that the tree's roots caused paving damage, and no order was made for rectification. The Court was satisfied that the tree had caused damage to one fence panel and that a large branch had previously fallen, thus triggering jurisdiction for orders. However, whole tree removal was not warranted as there was insufficient evidence of ongoing or imminent risk to persons or significant property. Appropriate orders included specific pruning and fence repair, not removal of the tree.

Court Disposition

Application to remove the tree dismissed. Orders made for pruning and for replacement of a fence panel.

Orders

  • The application to remove the tree is dismissed.
  • The application for rectification of paving is dismissed.