Tsinaslanidis v McKeown [2012] NSWLEC 1038

Tsinaslanidis v McKeown [2012] NSWLEC 1038

The Court was satisfied on the balance of probabilities, having regard to the size of Trees 3 and 5, their root buttresses and proximity to the lifted fence, that they caused the fence damage and that repair works were appropriate. The Court was also satisfied that falling limbs from the Lemon-scented Gum (Tree...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 February 2012
Procedural Posture
Class 2 Tree Dispute Application Under Part 2, S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
Orders made requiring the respondent to pay for fence repair works and pruning of the Lemon-scented Gum; other elements of the application were dismissed or not pressed.
Legal Topics
['damage to Boundary Fence by Tree Roots' 'risk of Injury From Falling Limbs' 'pruning Orders' 'fence Repair Orders' 'court Jurisdiction Under Trees (disputes Between Neighbours) Act 2006']
['tree Disputes' 'land and Environment' 'neighbour Disputes'] ['damage to Boundary Fence by Tree Roots' 'risk of Injury From Falling Limbs' 'pruning Orders' 'fence Repair Orders' 'court Jurisdiction Under Trees (disputes Between Neighbours) Act 2006']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Class 2 Tree Dispute Application Under Part 2, S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether Trees 3 and 5 caused damage to the common boundary fence.' 'Whether the damage to the fence justified orders being made.' 'Whether there was a risk of injury from falling limbs from the Lemon-scented Gum (Tree 13/14).' "Whether overhanging branches, leaves, twigs and debris enlivened the Court's jurisdiction." 'Whether other alleged tree-related damage, including to the colourbond fence and shed, was established.']

Ratio Decidendi

The Court was satisfied on the balance of probabilities, having regard to the size of Trees 3 and 5, their root buttresses and proximity to the lifted fence, that they caused the fence damage and that repair works were appropriate. The Court was also satisfied that falling limbs from the Lemon-scented Gum (Tree 13/14) posed a risk of injury and that the agreed pruning regime would minimise that risk without damaging the tree or destroying its natural form. Jurisdiction was not enlivened for ordinary debris maintenance, and no evidence established damage by Tree 8 or a pre-existing banana tree to the colourbond fence.

Court Disposition

Orders made requiring the respondent to pay for fence repair works and pruning of the Lemon-scented Gum; other elements of the application were dismissed or not pressed.

Orders

  • ['The respondent is to engage and pay for a fencing contractor to remove the 1.5m section of lifted brickwork, from the post 1m east of Tree 5 to a point 1.5m to the west. A new brick course is to be constructed on a lintel that spans over the roots, with at least 25mm clearance between the lintel and any woody...