Lees v Primrose [2014] NSWLEC 1122

Lees v Primrose [2014] NSWLEC 1122

The Black Bean tree caused damage to the boundary fence sufficient to enliven the Court's jurisdiction under the Act; some risk of future damage to the applicant’s property from roots and branches exist, but not enough to require removal of the tree; appropriate remedies are partial fence replacement, pruning, and root cutting rather than removal of the tree or full fence replacement.

Jurisdiction
Australia
Judgment Date
24 June 2014
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 and Dividing Fences Act 1991 / Principal Judgment
Outcome
Application upheld in part
Legal Topics
['tree Disputes' 'boundary Fences' 'damage From Trees' 'pruning Orders']
['environmental Law' 'property Law'] ['tree Disputes' 'boundary Fences' 'damage From Trees' 'pruning Orders']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 and Dividing Fences Act 1991 / Principal Judgment

Legal Issues

  1. 1 ["Whether the tree has caused or is likely to cause damage to the applicant's property" 'Whether the tree is likely to cause injury to any person' 'Remedies for damage to fence and property caused by tree']

Ratio Decidendi

The Black Bean tree caused damage to the boundary fence sufficient to enliven the Court's jurisdiction under the Act; some risk of future damage to the applicant’s property from roots and branches exist, but not enough to require removal of the tree; appropriate remedies are partial fence replacement, pruning, and root cutting rather than removal of the tree or full fence replacement.

Court Disposition

Application upheld in part

Orders

  • ['Respondent to engage a contractor to remove and replace two misaligned panels of fencing at their expense to restore alignment and clearance from the tree;' 'Applicant to allow access for fence works;' 'Respondent’s fence works to be completed within 90 days;' 'Applicant to engage a qualified arborist to prune the...