Wagener v Satsoc Pty Ltd [2010] NSWLEC 1018

Wagener v Satsoc Pty Ltd [2010] NSWLEC 1018

Tree 7 had caused damage to the fence and tree 6 would affect the fence if it were realigned vertically; their position and, for tree 7, condition justified removal. Although roots from other trees were visible and may have damaged concrete infill, they had not caused sufficient damage to the fence to warrant removal of trees 1 to 5.

Jurisdiction
Australia
Judgment Date
27 January 2010
Procedural Posture
Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Tree Damage to Property / Ex Tempore Judgment After Hearing
Outcome
Application upheld in part: removal of trees 6 and 7 ordered; removal of trees 1 to 5 dismissed; fence repair and realignment ordered.
Legal Topics
['damage to Property by Trees' 'removal of Trees' 'fence Damage' 'compensation Claim']
['trees (neighbours)' 'property' 'land and Environment Court Proceedings'] ['damage to Property by Trees' 'removal of Trees' 'fence Damage' 'compensation Claim']

Case Brief

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Procedural Posture

Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Tree Damage to Property / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether any of the respondent's trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property under s10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the damage or risk was sufficiently serious to warrant orders for removal of any trees.' 'What orders should be made concerning removal of trees and repair and realignment of the fence.']

Ratio Decidendi

Tree 7 had caused damage to the fence and tree 6 would affect the fence if it were realigned vertically; their position and, for tree 7, condition justified removal. Although roots from other trees were visible and may have damaged concrete infill, they had not caused sufficient damage to the fence to warrant removal of trees 1 to 5.

Court Disposition

Application upheld in part: removal of trees 6 and 7 ordered; removal of trees 1 to 5 dismissed; fence repair and realignment ordered.

Orders

  • ['The application to remove trees 6 and 7 is upheld.' 'The application to remove trees 1 to 5 is dismissed.' 'The respondent is to organise and pay for an AQF level 3 arborist, with the appropriate current insurances, to remove trees 6 and 7. The stumps are to be removed to at least 100 mm below ground. This work is...