Ahmad v Verhey [2012] NSWLEC 1121

Ahmad v Verhey [2012] NSWLEC 1121

The tree was principally located on the respondent's land, had damaged the applicant's fence and roof tiles, and posed a risk of injury from falling limbs. The Court's jurisdiction under the Trees (Disputes Between Neighbours) Act 2006 was therefore enlivened, and because the tree had damaged the fence the Court also had jurisdiction under s 13A of the Dividing Fences Act 1991 to order fence replacement and apportion costs. The consent orders were appropriate because tree removal would prevent further damage and injury and allow the dividing fence to be reinstated along the common boundary.

Jurisdiction
Australia
Judgment Date
16 May 2012
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Consent Orders Made
Outcome
The application to remove the tree was upheld and consent orders were made.
Legal Topics
['damage to Property' 'tree Removal' 'dividing Fence Replacement' 'consent Orders' 'jurisdiction']
['trees Disputes Between Neighbours' 'property Law' 'dividing Fences'] ['damage to Property' 'tree Removal' 'dividing Fence Replacement' 'consent Orders' 'jurisdiction']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Consent Orders Made

Legal Issues

  1. 1 ["Whether the tree was situated wholly or principally on the respondent's land so as to enliven the Court's jurisdiction." "Whether the respondent's tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the proposed consent orders were suitable for dealing with the damage caused by the tree.' 'Whether the Court had jurisdiction to make orders for repair or replacement of the boundary fence and apportionment of payment for those works.']

Ratio Decidendi

The tree was principally located on the respondent's land, had damaged the applicant's fence and roof tiles, and posed a risk of injury from falling limbs. The Court's jurisdiction under the Trees (Disputes Between Neighbours) Act 2006 was therefore enlivened, and because the tree had damaged the fence the Court also had jurisdiction under s 13A of the Dividing Fences Act 1991 to order fence replacement and apportion costs. The consent orders were appropriate because tree removal would prevent further damage and injury and allow the dividing fence to be reinstated along the common boundary.

Court Disposition

The application to remove the tree was upheld and consent orders were made.

Orders

  • ['The application to remove the tree is upheld.' 'Both parties are to obtain at least one quote for the works in Order (3) within 14 days of the date of these orders. They are to agree on the quote to be accepted. If they cannot agree, the applicant may choose the quote to be accepted.' 'Within 30 days of the date...