Weinert & anor v Metcalfe [2016] NSWLEC 1017

Weinert & anor v Metcalfe [2016] NSWLEC 1017

The jurisdictional test was not met for Trees 1, 2, 7, 10 and 11, but was met for Trees 3, 4 and 5 as the trees most likely to have caused the antenna and guttering damage, and for Trees 6, 8 and 9 because branches could in the near future cause damage. The guttering damage was minor, cosmetic and did not justify repainting at the respondent's expense, but it was reasonable for the respondent to contribute $300 toward repairing the antenna after notice of the damage. Further pruning and removal works were required at the respondent's expense to abate the established and near future risks.

Jurisdiction
Australia
Judgment Date
22 January 2016
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Application granted in part.
Legal Topics
['damage to Property by Trees' 'compensation' 'tree Pruning and Removal' 'near Future Risk of Damage' 'amenity and Actions of the Parties']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment Court Proceedings'] ['damage to Property by Trees' 'compensation' 'tree Pruning and Removal' 'near Future Risk of Damage' 'amenity and Actions of the Parties']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ["Whether each nominated tree had caused, was causing, or could in the near future cause damage to property on the applicants' land within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the respondent should be ordered to remove or prune trees on her property.' 'Whether compensation should be ordered for damage to guttering and an antenna.']

Ratio Decidendi

The jurisdictional test was not met for Trees 1, 2, 7, 10 and 11, but was met for Trees 3, 4 and 5 as the trees most likely to have caused the antenna and guttering damage, and for Trees 6, 8 and 9 because branches could in the near future cause damage. The guttering damage was minor, cosmetic and did not justify repainting at the respondent's expense, but it was reasonable for the respondent to contribute $300 toward repairing the antenna after notice of the damage. Further pruning and removal works were required at the respondent's expense to abate the established and near future risks.

Court Disposition

Application granted in part.

Orders

  • ['The application is granted in part.' 'Within 30 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to carry out the pruning and removal works in [18] – [21] of this judgment.' 'The pruning work is to be carried out in accordance with...