Redman v McSwiney and Maclure [2018] NSWLEC 1230

Redman v McSwiney and Maclure [2018] NSWLEC 1230

The tree's buttress roots have damaged the dividing fence, which is likely to experience further gradual damage. Removal of the tree would be disproportionate; repair is feasible and appropriate. Environmental benefits of the tree outweigh removing overhanging branches.

Jurisdiction
Australia
Judgment Date
14 May 2018
Procedural Posture
Class 1 / Judgment (extempore)
Outcome
Application partially granted
Legal Topics
['trees (disputes Between Neighbours)' 'damage to Property' 'fence Repair' 'tree Removal']
['environmental Law' 'property Law'] ['trees (disputes Between Neighbours)' 'damage to Property' 'fence Repair' 'tree Removal']

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Procedural Posture

Class 1 / Judgment (extempore)

Legal Issues

  1. 1 ["Whether the tree has caused damage to the applicant's property" 'Whether limbs are likely to fall in the near future' "Whether roots are likely to damage applicant's dwelling" 'Whether tree removal is proportionate and necessary']

Ratio Decidendi

The tree's buttress roots have damaged the dividing fence, which is likely to experience further gradual damage. Removal of the tree would be disproportionate; repair is feasible and appropriate. Environmental benefits of the tree outweigh removing overhanging branches.

Court Disposition

Application partially granted

Orders

  • ['Within six months, respondents to engage and pay for fencing contractor to replace fence panel nearest the tree, allowing at least 50 mm clearance between fencing and tree; top to align with adjacent panels; roots not to be damaged.' "Respondents to give applicant seven days' notice of works." 'Applicant to allow...