Minns v Turton [2018] NSWLEC 1688

Minns v Turton [2018] NSWLEC 1688

Orders were warranted only for repair of the boundary fence because the evidence showed the fence was obviously displaced by tree roots and could be repaired by realigning posts. The other alleged impacts were minor or unsupported by evidence of likely near-future damage or sufficient risk, so no pruning, root barrier, service-related or surface-root orders were made.

Jurisdiction
Australia
Judgment Date
20 December 2018
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment
Outcome
Application allowed in part; respondents ordered to repair the fence along the common boundary, with notice and access arrangements.
Legal Topics
['damage Caused by Trees' 'boundary Fence Displacement' 'overhanging Branches and Shade' 'tree Roots Near Services' 'surface Roots and Trip Hazard' 'orders for Remedial Works']
['trees Disputes Between Neighbours' 'land and Environment'] ['damage Caused by Trees' 'boundary Fence Displacement' 'overhanging Branches and Shade' 'tree Roots Near Services' 'surface Roots and Trip Hazard' 'orders for Remedial Works']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment

Legal Issues

  1. 1 ['Whether the trees caused damage warranting orders under the Trees (Disputes Between Neighbours) Act 2006 (NSW).' 'Whether roots displaced the boundary fence and what repair orders were appropriate.' 'Whether overhanging branches and shade justified pruning orders.' 'Whether roots near sewer and other services were likely to cause damage in the near future.' 'Whether surface roots created a risk of injury requiring Court orders.']

Ratio Decidendi

Orders were warranted only for repair of the boundary fence because the evidence showed the fence was obviously displaced by tree roots and could be repaired by realigning posts. The other alleged impacts were minor or unsupported by evidence of likely near-future damage or sufficient risk, so no pruning, root barrier, service-related or surface-root orders were made.

Court Disposition

Application allowed in part; respondents ordered to repair the fence along the common boundary, with notice and access arrangements.

Orders

  • ['Within 60 days of the date of these orders the respondents are to repair the fence along the common boundary so that within 5 m of each tree the top of the fence is no more than 50 mm out of the vertical plane above the bottom of the fence.' "The respondents are to give the applicant 7 days' notice of the works."...