Barbalace v Solomons [2021] NSWLEC 1402

Barbalace v Solomons [2021] NSWLEC 1402

The Court was satisfied on the balance of probabilities that the bamboo was at least one cause of damage to the applicant's television antenna and, in its current form, was likely to cause damage in the near future, thereby engaging s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. Having considered the s 12 matters, pruning and maintenance orders for the bamboo were appropriate and could prevent further damage without unduly compromising the respondents' privacy or other benefits. The bamboo did not pose an unacceptable risk of injury, falling leaves and refuse did not found jurisdiction, and the Magnolia tree near insulated electricity service wires posed a negligible risk...

Jurisdiction
Australia
Judgment Date
11 March 2021
Procedural Posture
Class 1 Tree Dispute Application Under the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous on Site Hearing; Principal Judgment and Final Orders
Outcome
Application allowed in part; pruning and maintenance orders made for the bamboo hedge. Claims concerning risk of injury, leaves and refuse, and the Magnolia tree were not upheld; the Part 2A hedge claim and compensation claim were withdrawn.
Legal Topics
['damage to Property From Trees' 'bamboo Hedge Pruning and Maintenance' 'risk of Injury From Trees' 'leaves and Refuse From Trees' 'branches Near Electricity Service Wire' 'high Hedge Claim Under Part 2 A']
['land and Environment' 'trees (disputes Between Neighbours)' 'neighbour Disputes'] ['damage to Property From Trees' 'bamboo Hedge Pruning and Maintenance' 'risk of Injury From Trees' 'leaves and Refuse From Trees' 'branches Near Electricity Service Wire' 'high Hedge Claim Under Part 2 A']

Case Brief

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Procedural Posture

Class 1 Tree Dispute Application Under the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous on Site Hearing; Principal Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the bamboo caused, was causing, or was likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the bamboo was likely to cause injury to any person.' "Whether leaves and other refuse falling from the bamboo invoked the Court's jurisdiction under s 7 of the Trees (Disputes Between Neighbours) Act 2006." 'Whether pruning orders for the bamboo should be made having regard to the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006.' "Whether branches of the Magnolia tree near the respondents' electricity service wire warranted intervention."]

Ratio Decidendi

The Court was satisfied on the balance of probabilities that the bamboo was at least one cause of damage to the applicant's television antenna and, in its current form, was likely to cause damage in the near future, thereby engaging s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. Having considered the s 12 matters, pruning and maintenance orders for the bamboo were appropriate and could prevent further damage without unduly compromising the respondents' privacy or other benefits. The bamboo did not pose an unacceptable risk of injury, falling leaves and refuse did not found jurisdiction, and the Magnolia tree near insulated electricity service wires posed a negligible risk...

Court Disposition

Application allowed in part; pruning and maintenance orders made for the bamboo hedge. Claims concerning risk of injury, leaves and refuse, and the Magnolia tree were not upheld; the Part 2A hedge claim and compensation claim were withdrawn.

Orders

  • ['Within 30 days of the date of these orders, the respondents, at their expense, shall prune the height of the bamboo hedge, so that no part of it exceeds the height of a horizontal line, projected from the bottom edge of the corrugated roofing iron, at the north east corner of their house.' 'The respondents, at...