Jones v Shelley & anor [2016] NSWLEC 1037

Jones v Shelley & anor [2016] NSWLEC 1037

The Court found that roots from Tree 1 (T1) are likely to cause damage to the boundary fence within the next 12 months, satisfying section 10(2) of the Act, and therefore ordered T1's removal. Claims for past damage or future damage to other structures were either not substantiated by evidence or insufficiently linked to the trees. No orders were made regarding Tree 2 or the removal of roots already present before the applicant took ownership.

Jurisdiction
Australia
Judgment Date
10 February 2016
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Decision and Orders
Outcome
Application upheld in part; orders made for removal of Tree 1; other relief dismissed
Legal Topics
['trees (disputes Between Neighbours)' 'property Damage' 'future Damage' 'neighbour Disputes']
['environmental Law'] ['trees (disputes Between Neighbours)' 'property Damage' 'future Damage' 'neighbour Disputes']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Decision and Orders

Legal Issues

  1. 1 ["Whether the trees on the respondents' property have caused, are causing, or are likely to cause damage to the applicant's property" 'Whether the trees are likely to cause injury to a person' 'Whether orders should be made for removal of trees or roots']

Ratio Decidendi

The Court found that roots from Tree 1 (T1) are likely to cause damage to the boundary fence within the next 12 months, satisfying section 10(2) of the Act, and therefore ordered T1's removal. Claims for past damage or future damage to other structures were either not substantiated by evidence or insufficiently linked to the trees. No orders were made regarding Tree 2 or the removal of roots already present before the applicant took ownership.

Court Disposition

Application upheld in part; orders made for removal of Tree 1; other relief dismissed

Orders

  • ['The application to remove the Ficus benjamina (Weeping Fig – T1) is upheld.' 'The application to remove Ficus benjamina (Weeping Fig – T2) is dismissed.' "The application to remove woody roots breaching the ground surface on the applicant's property is dismissed." 'Within 60 days, the respondents are to engage and...