Fox v Ginsberg [2011] NSWLEC 1204

Fox v Ginsberg [2011] NSWLEC 1204

Jurisdiction to make orders arises only in respect of trees which have caused, are causing, or are likely to cause damage as required by the Act. T1 and T3 established damage, but T2 did not. The respondent's tree T1 caused the damage requiring wall reconstruction; therefore, the full cost of wall reconstruction, including decorative cladding, is to be borne by the respondent. The Court declined to order removal of T1 and T3 as discretionary matter, balancing damage, amenity, and proposed independent removal. Minor plant suckering is not sufficient to establish jurisdiction or warrant orders.

Jurisdiction
Australia
Judgment Date
16 June 2011
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006, Class 2 / Principal Judgment, Final Orders
Outcome
Application in respect of T2 dismissed; application in respect of T3 dismissed due to respondent's intention to remove; application for removal of T1 dismissed; mandatory directions for wall removal and reconstruction at respondent's cost; further arborist works ordered; costs reserved.
Legal Topics
['trees and Vegetation' 'boundary Disputes' 'damage to Property' 'amenity']
['property Law' 'environmental Law'] ['trees and Vegetation' 'boundary Disputes' 'damage to Property' 'amenity']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006, Class 2 / Principal Judgment, Final Orders

Legal Issues

  1. 1 ["Whether the trees on the respondent's property have caused, are causing, or are likely to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006" 'Appropriate orders regarding removal or retention of the trees and reconstruction of the boundary wall, including responsibility for associated costs']

Ratio Decidendi

Jurisdiction to make orders arises only in respect of trees which have caused, are causing, or are likely to cause damage as required by the Act. T1 and T3 established damage, but T2 did not. The respondent's tree T1 caused the damage requiring wall reconstruction; therefore, the full cost of wall reconstruction, including decorative cladding, is to be borne by the respondent. The Court declined to order removal of T1 and T3 as discretionary matter, balancing damage, amenity, and proposed independent removal. Minor plant suckering is not sufficient to establish jurisdiction or warrant orders.

Court Disposition

Application in respect of T2 dismissed; application in respect of T3 dismissed due to respondent's intention to remove; application for removal of T1 dismissed; mandatory directions for wall removal and reconstruction at respondent's cost; further arborist works ordered; costs reserved.

Orders

  • ['The application with respect to T2 is dismissed.' "Noting the respondent's intention to remove T3, the application with respect to T3 is dismissed." 'The application for removal of T1 is dismissed.' "The brick wall and footing between the applicant and respondent's property is to be disassembled and removed under...