Jackson v Phillips [2019] NSWLEC 1271

Jackson v Phillips [2019] NSWLEC 1271

The healthy Scribbly Gum did not warrant removal, but the Court's jurisdiction was enlivened because branches from it had previously broken the applicant's roof tiles and the lower bamboo, debris and possibly buttress roots had displaced the boundary fence. Routine pruning would minimise future branch damage, removal and prevention of regrowth of bamboo in the lower area would prevent further fence damage, and the respondents were responsible for repairing the fence. Claims based on ordinary debris, ladder-cleaning risk, alleged root damage to the retaining wall or path, fire risk, and past reimbursement were not established or did not justify orders.

Jurisdiction
Australia
Judgment Date
31 May 2019
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
Application allowed in part; orders made for removal or killing of lower bamboo, prevention of bamboo regrowth, repair of the displaced fence, access and notice arrangements, and periodic pruning of the gum tree; removal of the Scribbly Gum and compensation were not ordered.
Legal Topics
['damage to Property by Trees' 'boundary Fence Damage' 'risk of Injury' 'tree Pruning' 'bamboo Removal' 'compensation for Past Repairs']
['trees Disputes Between Neighbours' 'land and Environment'] ['damage to Property by Trees' 'boundary Fence Damage' 'risk of Injury' 'tree Pruning' 'bamboo Removal' 'compensation for Past Repairs']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the respondents' Scribbly Gum or bamboo should be removed because of alleged damage or risk of damage or injury to the applicant's property." 'Whether the respondents should repair the common boundary fence displaced near the Scribbly Gum.' "Whether routine pruning should be ordered to reduce the risk of branches damaging the applicant's roof." 'Whether debris blocking gutters, alleged root damage, fire risk, and past pruning or repair costs justified orders or compensation.']

Ratio Decidendi

The healthy Scribbly Gum did not warrant removal, but the Court's jurisdiction was enlivened because branches from it had previously broken the applicant's roof tiles and the lower bamboo, debris and possibly buttress roots had displaced the boundary fence. Routine pruning would minimise future branch damage, removal and prevention of regrowth of bamboo in the lower area would prevent further fence damage, and the respondents were responsible for repairing the fence. Claims based on ordinary debris, ladder-cleaning risk, alleged root damage to the retaining wall or path, fire risk, and past reimbursement were not established or did not justify orders.

Court Disposition

Application allowed in part; orders made for removal or killing of lower bamboo, prevention of bamboo regrowth, repair of the displaced fence, access and notice arrangements, and periodic pruning of the gum tree; removal of the Scribbly Gum and compensation were not ordered.

Orders

  • ['Within 30 days of the date of these orders the respondents are to remove or kill all bamboo within the lower area of ground surrounding their Scribbly Gum. (This order does not apply to bamboo within the raised planter boxes.)' 'The respondents are to take any measures necessary to prevent regrowth of the bamboo...