Dunn v Slattery [2024] NSWLEC 1331

Dunn v Slattery [2024] NSWLEC 1331

The trees were principally situated on the respondent's adjoining land and had caused damage to the common boundary fence, satisfying s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006. However, the evidence did not establish likely near-future damage to the applicant's proposed concrete driveway, and removal or canopy pruning was not justified having regard to the statutory considerations, the trees' amenity and environmental benefits, and available tree-sensitive fence modifications. The existing fence was a satisfactory fence for the purposes of the Dividing Fences Act 1991 subject to replacement of the damaged section, with arborist-supervised works and Tree Protection...

Jurisdiction
Australia
Judgment Date
17 June 2024
Procedural Posture
Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 and for a New Dividing Fence Under S 13 a of the Dividing Fences Act 1991 / Principal Judgment After Onsite Hearing; Final Orders Made
Outcome
Application allowed in part. Tree removal and trimming were not ordered; fence replacement, fence modification, arborist supervision, access, and working-hours orders were made.
Legal Topics
['tree Damage to Common Boundary Fence' 'tree Removal Refused' 'fence Repair and Modification' 'tree Protection Zones' 'arborist Supervision' 'development Impacts on Neighbouring Trees']
['trees Disputes Between Neighbours' 'dividing Fences' 'land and Environment'] ['tree Damage to Common Boundary Fence' 'tree Removal Refused' 'fence Repair and Modification' 'tree Protection Zones' 'arborist Supervision' 'development Impacts on Neighbouring Trees']

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Procedural Posture

Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 and for a New Dividing Fence Under S 13 a of the Dividing Fences Act 1991 / Principal Judgment After Onsite Hearing; Final Orders Made

Legal Issues

  1. 1 ['Whether the two Melaleuca quinquenervia trees were situated on adjoining land for the purposes of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicant complied with notice and reasonable-efforts requirements under ss 8 and 10 of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property." "Whether orders should be made for removal or trimming of the trees, replacement or repair of the common boundary fence, and tree protection measures during the applicant's works." 'Whether the existing fence was a satisfactory fence for the purposes of the Dividing Fences Act 1991.']

Ratio Decidendi

The trees were principally situated on the respondent's adjoining land and had caused damage to the common boundary fence, satisfying s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006. However, the evidence did not establish likely near-future damage to the applicant's proposed concrete driveway, and removal or canopy pruning was not justified having regard to the statutory considerations, the trees' amenity and environmental benefits, and available tree-sensitive fence modifications. The existing fence was a satisfactory fence for the purposes of the Dividing Fences Act 1991 subject to replacement of the damaged section, with arborist-supervised works and Tree Protection...

Court Disposition

Application allowed in part. Tree removal and trimming were not ordered; fence replacement, fence modification, arborist supervision, access, and working-hours orders were made.

Orders

  • ["Within 90 days of the date of these orders, the respondent, at her expense, shall replace 6 posts and four panels of the common boundary fence, comprising the 2nd to the 7th post inclusive and the 3rd panel to the 6th panel inclusive, when considered from the fence's eastern end. The design of fence panels in...