Magri v Fagan [2013] NSWLEC 1197

Magri v Fagan [2013] NSWLEC 1197

The Jacaranda tree is likely in the near future to cause damage to the dividing fence, engaging the Court's jurisdiction under s 10(2). Removal of the tree and repair of the fence are appropriate remedies. The driveway damage was insufficient and not adequately connected to the tree to engage jurisdiction or warrant...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 October 2013
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal upheld in part
Legal Topics
['tree Removal' 'dividing Fence Repair']
['property Law' 'environmental Law'] ['tree Removal' 'dividing Fence Repair']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether the tree caused or is likely to cause damage to property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006' 'Extent of damage to driveway and fence' 'Whether orders for fence repair under Dividing Fences Act 1991 should be made']

Ratio Decidendi

The Jacaranda tree is likely in the near future to cause damage to the dividing fence, engaging the Court's jurisdiction under s 10(2). Removal of the tree and repair of the fence are appropriate remedies. The driveway damage was insufficient and not adequately connected to the tree to engage jurisdiction or warrant orders.

Court Disposition

Appeal upheld in part

Orders

  • ['Respondent to engage AQF level 3 arborist to remove the tree and poison stump within 30 days' 'Work to be carried out in accordance with WorkCover NSW Code of Practice for the Amenity Tree Industry' 'Parties to obtain at least two repair quotes each for the fence within 30 days, exchange and agree on cheapest...