Fogg v Waters [2007] NSWLEC 358

Fogg v Waters [2007] NSWLEC 358

Falling leaves, fruit and small deadwood did not constitute damage warranting intervention, and there was no evidence of structural damage or likely near-future structural damage to the pool or surrounds. However, one substantial branch and one smaller branch touching or likely to touch the garage roof were likely to have caused, or to cause, damage, justifying limited pruning at the respondent's expense rather than removal of the tree.

Jurisdiction
Australia
Judgment Date
14 June 2007
Procedural Posture
Trees (neighbours) Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application partly allowed; limited pruning ordered and removal refused.
Legal Topics
['neighbouring Trees' 'tree Pruning' 'property Damage' 'minor Maintenance']
['land and Environment' 'trees Disputes Between Neighbours'] ['neighbouring Trees' 'tree Pruning' 'property Damage' 'minor Maintenance']

Case Brief

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Procedural Posture

Trees (neighbours) Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether falling leaves, fruit and small deadwood from the Brush Box constituted damage for the purposes of s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the tree had caused, or was likely in the near future to cause, damage to the applicants' garage roof, swimming pool or surrounds." "Whether the Court should order removal of the tree or pruning at the respondent's cost."]

Ratio Decidendi

Falling leaves, fruit and small deadwood did not constitute damage warranting intervention, and there was no evidence of structural damage or likely near-future structural damage to the pool or surrounds. However, one substantial branch and one smaller branch touching or likely to touch the garage roof were likely to have caused, or to cause, damage, justifying limited pruning at the respondent's expense rather than removal of the tree.

Court Disposition

Application partly allowed; limited pruning ordered and removal refused.

Orders

  • ['Formal orders were made pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006.' 'The substantial branch with a diameter of about 12.5 cm at its point of attachment to its trunk is to be pruned in accordance with AS 4373 of 2007.' 'The pruning is to be conducted by an AQF Level 3 arborist with...