Beacher v Arkless [2011] NSWLEC 1320

Beacher v Arkless [2011] NSWLEC 1320

The tree had contributed to displacement of the metal dividing fence through pressure associated with the galvanised pipe and footing, enlivening the Court's jurisdiction to order rectification, but removal of the tree was not necessary because the trunk was some distance from the fence, no substantial branches rested on it, and significant roots had been cut. The evidence did not establish likely near-future damage to the house footings or water pipes, nor a non-remote risk of injury, so orders were confined to removal of the pipe and concrete footing and reinstatement of the fence alignment with access from the applicant's property.

Jurisdiction
Australia
Judgment Date
08 November 2011
Procedural Posture
Class 2 Application Pursuant to S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Application to remove the tree dismissed; orders made for rectification of the metal dividing fence at the respondents' cost.
Legal Topics
['damage to Metal Dividing Fence' 'application to Remove Tree' 'likely Future Damage to Property' 'risk of Injury From Tree' 'access to Adjoining Property for Rectification Works' 'costs Jurisdiction']
['trees Disputes Between Neighbours' 'property' 'neighbour Disputes'] ['damage to Metal Dividing Fence' 'application to Remove Tree' 'likely Future Damage to Property' 'risk of Injury From Tree' 'access to Adjoining Property for Rectification Works' 'costs Jurisdiction']

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Procedural Posture

Class 2 Application Pursuant to S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ["Whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the tree was likely to cause injury to any person.' 'Whether removal of the tree was necessary to address the displacement of the metal dividing fence.' "Whether orders should be made for rectification of the fence and access to the applicant's property for that work."]

Ratio Decidendi

The tree had contributed to displacement of the metal dividing fence through pressure associated with the galvanised pipe and footing, enlivening the Court's jurisdiction to order rectification, but removal of the tree was not necessary because the trunk was some distance from the fence, no substantial branches rested on it, and significant roots had been cut. The evidence did not establish likely near-future damage to the house footings or water pipes, nor a non-remote risk of injury, so orders were confined to removal of the pipe and concrete footing and reinstatement of the fence alignment with access from the applicant's property.

Court Disposition

Application to remove the tree dismissed; orders made for rectification of the metal dividing fence at the respondents' cost.

Orders

  • ['The application to remove the tree is dismissed.' "The respondents or their agents are to remove the galvanised pipe and its concrete footing and to reinstate the alignment of the metal dividing fence. The concrete is to be taken away through the respondents' property." 'To enable these works to be carried out in...