Chan v McDonald [2018] NSWLEC 1692

Chan v McDonald [2018] NSWLEC 1692

The survey showed that 61.5% of the stem's area at ground level was on the respondent's property, so the tree was principally situated on adjoining land and the Court had jurisdiction. Because the tree's point of origin could not be established and it straddled the boundary, it was a boundary tree owned jointly by the applicants and the respondent. Pruning was required to minimise the risk from dead, overextended or defective limbs, but the applicants had chosen to site a granny flat beneath the canopy and were co-owners of the tree. The appropriate orders were for pruning to be arranged by the applicants with the cost shared equally, and compensation for roof repairs was not justified.

Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
Application allowed in part; pruning orders made with costs shared equally, and compensation for roof damage refused.
Legal Topics
['boundary Tree' 'tree Ownership' 'adjoining Land Jurisdiction' 'pruning Orders' 'compensation for Property Damage' 'apportionment of Costs']
['trees Disputes Between Neighbours' 'property Law'] ['boundary Tree' 'tree Ownership' 'adjoining Land Jurisdiction' 'pruning Orders' 'compensation for Property Damage' 'apportionment of Costs']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the Blackbutt was wholly or principally on adjoining land for the purposes of the Trees (Disputes Between Neighbours) Act 2006 (NSW).' 'Who owned the tree where its stem base straddled the common boundary.' 'What pruning works were required to address damage and risk of damage or injury.' 'Who should pay for pruning works.' 'Whether the applicants should receive compensation for roof tile damage caused by a falling branch.']

Ratio Decidendi

The survey showed that 61.5% of the stem's area at ground level was on the respondent's property, so the tree was principally situated on adjoining land and the Court had jurisdiction. Because the tree's point of origin could not be established and it straddled the boundary, it was a boundary tree owned jointly by the applicants and the respondent. Pruning was required to minimise the risk from dead, overextended or defective limbs, but the applicants had chosen to site a granny flat beneath the canopy and were co-owners of the tree. The appropriate orders were for pruning to be arranged by the applicants with the cost shared equally, and compensation for roof repairs was not justified.

Court Disposition

Application allowed in part; pruning orders made with costs shared equally, and compensation for roof damage refused.

Orders

  • ['Within 14 days of the date of the orders the applicants are to obtain, and provide copies to the respondent, three quotes from suitably qualified arborists with minimum AQF level 3 and all appropriate insurances to carry out specified pruning works on the Blackbutt in accordance with the WorkCover NSW Code of...