Lee v Elford [2024] NSWLEC 1103

Lee v Elford [2024] NSWLEC 1103

The Court found, on the balance of probabilities, that the respondents' pear trees contributed to, but were unlikely to be the sole cause of, damage to the boundary brick wall; the proximity of the trees and selected damage supported this conclusion. The ghost bamboo and slender weaver's bamboo similarly contributed to or were likely to cause damage to the boundary fence. Accordingly, jurisdiction under s 10 of the Trees Act was satisfied, and orders were made for partial removal and management of bamboo but not removal of the pear trees. The dividing fence was to be replaced by a lightweight structure, with costs apportioned 70% to the respondents due to their contribution to accelerated...

Jurisdiction
Australia
Judgment Date
11 March 2024
Procedural Posture
Trees (disputes Between Neighbours) Application (class 2) / Judgment and Final Orders
Outcome
Application granted in part; orders for partial removal/management of bamboo, replacement of boundary fence, and cost apportionment. Application to remove pear trees and for all costs to respondents refused.
Legal Topics
['tree Disputes' 'dividing Fences' 'damage to Property' 'apportionment of Costs' 'causation of Damage']
['environment and Planning Law' 'property Law'] ['tree Disputes' 'dividing Fences' 'damage to Property' 'apportionment of Costs' 'causation of Damage']

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Procedural Posture

Trees (disputes Between Neighbours) Application (class 2) / Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the respondents' trees (pear trees and bamboo) have caused damage or are likely in the near future to cause damage to the applicant's property within the meaning of s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006" 'Whether removal of the trees (bamboo and/or pear trees) is required' 'Whether the dividing fence should be replaced and how costs should be apportioned']

Ratio Decidendi

The Court found, on the balance of probabilities, that the respondents' pear trees contributed to, but were unlikely to be the sole cause of, damage to the boundary brick wall; the proximity of the trees and selected damage supported this conclusion. The ghost bamboo and slender weaver's bamboo similarly contributed to or were likely to cause damage to the boundary fence. Accordingly, jurisdiction under s 10 of the Trees Act was satisfied, and orders were made for partial removal and management of bamboo but not removal of the pear trees. The dividing fence was to be replaced by a lightweight structure, with costs apportioned 70% to the respondents due to their contribution to accelerated...

Court Disposition

Application granted in part; orders for partial removal/management of bamboo, replacement of boundary fence, and cost apportionment. Application to remove pear trees and for all costs to respondents refused.

Orders

  • ['The application to remove the bamboo is granted in part as per detailed orders.' 'The application to remove other trees is refused.' 'The application to replace the dividing fence is granted.' 'The application for the cost of fencing works to be borne solely by the respondent is refused.' "Within 30 days, the...