Neal v Smith & anor [2017] NSWLEC 1014

Neal v Smith & anor [2017] NSWLEC 1014

The Court was not satisfied that any of the trees had caused or would be likely in the near future to cause damage to the original fence; any impact was minor and due primarily to material failure. For the new Colorbond fence, one stem of the Melaleuca could in the near future cause damage, warranting removal of that stem, but not relocation or further orders regarding the fence.

Parties
Applicant: Gordon Neal; Respondent: Sidney Smith; Respondent: Eleanora Smith
Jurisdiction
Australia
Judgment Date
13 January 2017
Procedural Posture
Tree Dispute / Dividing Fence / Final Judgment
Outcome
Partly allowed; application regarding the dividing fence dismissed; order to remove one tree stem granted
Legal Topics
Trees (disputes Between Neighbours), Dividing Fences, Damage Caused by Trees
Property Law Environmental Law Trees (disputes Between Neighbours) Dividing Fences Damage Caused by Trees

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Parties

Gordon Neal

Applicant

Sidney Smith

Respondent

Eleanora Smith

Respondent

Procedural Posture

Tree Dispute / Dividing Fence / Final Judgment

Legal Issues

  1. 1 Whether trees on the respondents’ land caused or are likely to cause damage to the applicant’s property or fence within the meaning of s10(2) Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether orders concerning the dividing fence should be made under s13A Dividing Fences Act 1991

Ratio Decidendi

The Court was not satisfied that any of the trees had caused or would be likely in the near future to cause damage to the original fence; any impact was minor and due primarily to material failure. For the new Colorbond fence, one stem of the Melaleuca could in the near future cause damage, warranting removal of that stem, but not relocation or further orders regarding the fence.

Court Disposition

Partly allowed; application regarding the dividing fence dismissed; order to remove one tree stem granted

Orders

  • Within 30 days, respondents to engage and pay for an arborist (minimum AQF level 3) to remove the east-facing co-dominant stem of the Melaleuca (T4) as indicated by tape, in accordance with AS4373:2007 and relevant safety standards.
  • Application with respect to the dividing fence is dismissed.