Peacock v Hanna & anor [2017] NSWLEC 1323

Peacock v Hanna & anor [2017] NSWLEC 1323

The tree, by its stem and a buttress root growing against the timber boundary fence, damaged part of the fence, enlivening the Court's jurisdiction and justifying orders for replacement of the entire boundary fence and a low retaining wall with costs shared equally. The evidence did not satisfy the Court that roots caused lifting of the path, cracking of the laundry step, or other claimed damage, and the minor path crack adjacent to the tree was de minimis, so no orders were made for those elements.

Jurisdiction
Australia
Judgment Date
07 June 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
The application is upheld in part; orders were made for fence replacement and a low retaining wall, and all other elements of the application were dismissed.
Legal Topics
['damage by Tree' 'tree Already Removed' 'boundary Fence Replacement' 'retaining Wall' 'causation of Property Damage']
['trees (disputes Between Neighbours)' 'dividing Fences'] ['damage by Tree' 'tree Already Removed' 'boundary Fence Replacement' 'retaining Wall' 'causation of Property Damage']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether the removed Tree of Heaven on the respondents' property damaged the applicant's boundary fence." "Whether the tree caused lifting or cracking of the applicant's concrete path, cracking of laundry steps, or other damage on the applicant's property." 'Whether orders should be made for replacement of the boundary fence and construction of a low retaining wall, and how the cost should be shared.']

Ratio Decidendi

The tree, by its stem and a buttress root growing against the timber boundary fence, damaged part of the fence, enlivening the Court's jurisdiction and justifying orders for replacement of the entire boundary fence and a low retaining wall with costs shared equally. The evidence did not satisfy the Court that roots caused lifting of the path, cracking of the laundry step, or other claimed damage, and the minor path crack adjacent to the tree was de minimis, so no orders were made for those elements.

Court Disposition

The application is upheld in part; orders were made for fence replacement and a low retaining wall, and all other elements of the application were dismissed.

Orders

  • ['Within 45 days of the date of these orders each party is to obtain two quotes for the removal and replacement of the timber fence along their common boundary. The new fence is to be of timber palings of a similar height and style to the existing, with a low retaining wall at its base along sections where this is...