English v Southwell [2018] NSWLEC 1150

English v Southwell [2018] NSWLEC 1150

Because the tree was on adjoining land, agreement had been attempted, and the tree had caused damage to the applicants' property by displacing the timber paling fence, the Trees Act jurisdictional requirements were satisfied. Although the palm had amenity value, no permit was required for its removal, it was listed by Wagga Wagga Council as an undesirable species, and alternative fencing solutions would either be damaged by further root growth or fail to contain domestic animals. The only appropriate solution was removal of the tree, and because the respondent agreed that the entire fence should be replaced, orders were made for full fence replacement with the respondent contributing 50%...

Jurisdiction
Australia
Judgment Date
21 March 2018
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Tree Removal and Dividing Fence Replacement Orders / Principal Judgment After Onsite Hearing
Outcome
The application is upheld.
Legal Topics
['canary Islands Date Palm' 'damage to Dividing Fence' 'orders for Tree Removal' 'orders for Fence Replacement' 'cost Sharing for Dividing Fence']
['trees Disputes Between Neighbours' 'dividing Fences' 'land and Environment Court Proceedings'] ['canary Islands Date Palm' 'damage to Dividing Fence' 'orders for Tree Removal' 'orders for Fence Replacement' 'cost Sharing for Dividing Fence']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Tree Removal and Dividing Fence Replacement Orders / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the jurisdictional tests in the Trees (Disputes Between Neighbours) Act 2006 were satisfied for orders concerning the tree and the damaged section of fence.' 'Whether the tree should be removed given its amenity value and the damage caused by its rootball to the timber paling fence.' 'Whether orders should be made for replacement of the entire common boundary fence and for contribution to the cost.']

Ratio Decidendi

Because the tree was on adjoining land, agreement had been attempted, and the tree had caused damage to the applicants' property by displacing the timber paling fence, the Trees Act jurisdictional requirements were satisfied. Although the palm had amenity value, no permit was required for its removal, it was listed by Wagga Wagga Council as an undesirable species, and alternative fencing solutions would either be damaged by further root growth or fail to contain domestic animals. The only appropriate solution was removal of the tree, and because the respondent agreed that the entire fence should be replaced, orders were made for full fence replacement with the respondent contributing 50%...

Court Disposition

The application is upheld.

Orders

  • ['Within 30 days of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree, including any of its roots along the boundary within 100 mm of ground level.' "The respondent is to give the...