Liang & anor v Marsh & anor [2011] NSWLEC 1026

Liang & anor v Marsh & anor [2011] NSWLEC 1026

The Lillypilly's dead wood enlivened jurisdiction because it could cause injury, but wholesale pruning of overhanging branches was not justified because fruit drop and ordinary tree debris are matters for regular external maintenance and no exceptional circumstances were proved. The Blue Gum's dead wood created a foreseeable risk of injury and future property damage warranting periodic dead wood removal, but removal of the tree was disproportionate because the tree was healthy, showed no instability or structural defect, and most alleged existing damage likely pre-dated the applicants' ownership. Compensation for roof tiles was refused; compensation for fence and retaining wall repairs...

Jurisdiction
Australia
Judgment Date
28 February 2011
Procedural Posture
Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application upheld in part: pruning of the Lillypilly overhanging branches and removal of the Blue Gum were dismissed; compensation for roof tiles was dismissed; compensation for fence and retaining wall repairs was upheld in part; dead wood removal and partial reimbursement orders were made.
Legal Topics
['tree Pruning' 'tree Removal' 'damage to Property' 'risk of Injury' 'compensation' 'caveat Emptor' 'dividing Fence' 'retaining Wall']
['trees Disputes Between Neighbours' 'property Law' 'environmental and Planning Law'] ['tree Pruning' 'tree Removal' 'damage to Property' 'risk of Injury' 'compensation' 'caveat Emptor' 'dividing Fence' 'retaining Wall']

Case Brief

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Procedural Posture

Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Lillypilly had caused, was causing, or was likely in the near future to cause damage to the applicants' property or was likely to cause injury to any person." "Whether the Blue Gum had caused, was causing, or was likely in the near future to cause damage to the applicants' property or was likely to cause injury to any person." 'Whether removal of the Blue Gum was warranted.' 'Whether pruning of all overhanging branches of the Lillypilly was warranted.' 'Whether the applicants were entitled to compensation for roof tiles, fence and retaining wall damage.']

Ratio Decidendi

The Lillypilly's dead wood enlivened jurisdiction because it could cause injury, but wholesale pruning of overhanging branches was not justified because fruit drop and ordinary tree debris are matters for regular external maintenance and no exceptional circumstances were proved. The Blue Gum's dead wood created a foreseeable risk of injury and future property damage warranting periodic dead wood removal, but removal of the tree was disproportionate because the tree was healthy, showed no instability or structural defect, and most alleged existing damage likely pre-dated the applicants' ownership. Compensation for roof tiles was refused; compensation for fence and retaining wall repairs...

Court Disposition

Application upheld in part: pruning of the Lillypilly overhanging branches and removal of the Blue Gum were dismissed; compensation for roof tiles was dismissed; compensation for fence and retaining wall repairs was upheld in part; dead wood removal and partial reimbursement orders were made.

Orders

  • ['The application to prune the overhanging branches of the Lillypilly is dismissed.' 'The application to remove the Blue Gum is dismissed.' 'The application for compensation for repair of roof tiles is dismissed.' 'The application for compensation for repair of the fence and retaining wall is upheld in part.' 'The...