Wicks v Fenton [2014] NSWLEC 1129

Wicks v Fenton [2014] NSWLEC 1129

The Court dismissed the applications concerning the Jacaranda, Red Gum, small unidentified tree, Monstera deliciosa and retaining wall because jurisdiction was not established for most alleged damage or risk, or because discretion did not warrant orders for the wall after root removal. Jurisdiction was established for the Eucalypt stump because roots had caused part of the fence damage and rotation of the low concrete retaining wall. Limited orders requiring partial stump removal, poisoning and root removal were appropriate. Because part of the need to replace the fence arose from tree root damage but the fence was also old and at the end of its useful life, the replacement fence cost was...

Jurisdiction
Australia
Judgment Date
23 June 2014
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 and S 13 a of the Dividing Fences Act 1991 / Principal Judgment After Hearing; Final Orders
Outcome
Application dismissed in part and granted in part; final orders made for partial Eucalypt stump removal and poisoning, root removal, fence replacement, access, insurance proof and fence cost apportionment.
Legal Topics
['jurisdictional Tests Under S 10 of the Trees (disputes Between Neighbours) Act 2006' 'risk of Injury and Property Damage From Trees' 'discretion to Make Tree Orders' 'dividing Fence Replacement and Cost Apportionment' 'neighbour Disputes']
['land and Environment' 'trees Disputes' 'dividing Fences'] ['jurisdictional Tests Under S 10 of the Trees (disputes Between Neighbours) Act 2006' 'risk of Injury and Property Damage From Trees' 'discretion to Make Tree Orders' 'dividing Fence Replacement and Cost Apportionment' 'neighbour Disputes']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 and S 13 a of the Dividing Fences Act 1991 / Principal Judgment After Hearing; Final Orders

Legal Issues

  1. 1 ["Whether the Jacaranda caused, was causing, or was likely in the near future to cause damage to the applicant's property or risk of injury to any person." 'Whether the Red Gum branch and the small unidentified tree satisfied the jurisdictional tests under s 10 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Monstera deliciosa caused damage or risk of injury sufficient to enliven jurisdiction.' 'Whether root impact from the Eucalypt stump caused damage to the concrete retaining wall or dividing fence, and what orders should be made.' 'Whether the paling dividing fence should be replaced and how the cost should be apportioned under the Trees (Disputes Between Neighbours) Act 2006 and the Dividing Fences Act 1991.']

Ratio Decidendi

The Court dismissed the applications concerning the Jacaranda, Red Gum, small unidentified tree, Monstera deliciosa and retaining wall because jurisdiction was not established for most alleged damage or risk, or because discretion did not warrant orders for the wall after root removal. Jurisdiction was established for the Eucalypt stump because roots had caused part of the fence damage and rotation of the low concrete retaining wall. Limited orders requiring partial stump removal, poisoning and root removal were appropriate. Because part of the need to replace the fence arose from tree root damage but the fence was also old and at the end of its useful life, the replacement fence cost was...

Court Disposition

Application dismissed in part and granted in part; final orders made for partial Eucalypt stump removal and poisoning, root removal, fence replacement, access, insurance proof and fence cost apportionment.

Orders

  • ['The application concerning the Jacaranda is dismissed.' 'The application concerning the tree described as a Red Gum is dismissed.' 'The application concerning the unspecified tree in the vicinity of the Jacaranda and underneath the branch of the Red Gum is dismissed.' 'The application concerning the Monstera...