Toma v Mergen [2011] NSWLEC 1251

Toma v Mergen [2011] NSWLEC 1251

Only trees physically causing or likely to imminently cause damage to property fall within the Act's jurisdiction; maintenance issues such as leaf litter or the presence of insects/spiders are outside scope. Pruning orders are appropriate only for trees where risk of property damage by physical contact is established.

Parties
Applicant: S Toma; Respondent: M L Mergen
Jurisdiction
Australia
Judgment Date
29 July 2011
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Decision After Hearing
Outcome
Application upheld in part
Legal Topics
Trees (disputes Between Neighbours) Act 2006, Damage by Trees, Jurisdiction, Pruning Orders, Responsibility for Maintenance
Environmental Law Neighbour Disputes Trees (disputes Between Neighbours) Act 2006 Damage by Trees Jurisdiction Pruning Orders Responsibility for Maintenance

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Parties

S Toma

Applicant

M L Mergen

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Decision After Hearing

Legal Issues

  1. 1 Whether the trees on the respondent's land have caused or are likely to cause damage to the applicant's property under the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether creper plants and insects fall within the Act's jurisdiction
  3. 3 Whether the court has jurisdiction to order remedies for anticipated damage or loss of sunlight

Ratio Decidendi

Only trees physically causing or likely to imminently cause damage to property fall within the Act's jurisdiction; maintenance issues such as leaf litter or the presence of insects/spiders are outside scope. Pruning orders are appropriate only for trees where risk of property damage by physical contact is established.

Court Disposition

Application upheld in part

Orders

  • Respondent to engage and pay for an AQF level 3 arborist to prune branches of tree 2 (Melaleuca bracteata) and tree 3 (Syzygium) in direct contact with applicant's roof tiles and ridge capping, achieving at least 1 metre clearance.
  • Pruning work must comply with AS 4373-2006 and NSW Workcover Industry Code of Practice for Amenity Trees.