McArthur v Miernik [2011] NSWLEC 1359

McArthur v Miernik [2011] NSWLEC 1359

Vegetation (including bamboo) on the respondent's property caused damage to the dividing fence, satisfying s 10(2) of the Act; Court jurisdiction enlivened. The Camphor Laurel does not pose a near-future risk; no order may be made for that tree. Orders granted for partial fence replacement and bamboo removal.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 December 2011
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment
Outcome
Application upheld in part
Legal Topics
['trees and Neighbours' 'damage to Property' 'dividing Fences']
['property Law' 'environmental Law'] ['trees and Neighbours' 'damage to Property' 'dividing Fences']

Source-derived case record

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment

Legal Issues

  1. 1 ["Whether trees and bamboo growing on the respondent's property caused damage to the dividing fence" "Whether the Camphor Laurel posed a risk of future damage to the applicant's property" 'Extent of damage and responsibility for repair costs']

Ratio Decidendi

Vegetation (including bamboo) on the respondent's property caused damage to the dividing fence, satisfying s 10(2) of the Act; Court jurisdiction enlivened. The Camphor Laurel does not pose a near-future risk; no order may be made for that tree. Orders granted for partial fence replacement and bamboo removal.

Court Disposition

Application upheld in part

Orders

  • ['Application in respect of the Camphor Laurel dismissed.' 'Application in respect of the fence upheld in part.' 'Respondent to remove all bamboo within 1m of the dividing fence by end of January 2012.' 'Respondent and applicant to obtain quotes from licensed fencing contractors for replacement of four panels (9.5m)...