The Owners – Strata Plan 1868 v Morgan [2021] NSWLEC 1313

The Owners – Strata Plan 1868 v Morgan [2021] NSWLEC 1313

Based on inspection and evidence, the trees (Schefflera and Phoenix palm) are found to have caused and are likely in the near future to cause damage to the applicant’s garage wall. This, together with the applicant’s reasonable attempts to resolve the dispute, satisfies the requirements of ss 7 and 10 of the Act. Orders are warranted for removal and replacement, but due to contributory factors (wall construction), the applicant must bear removal costs.

Jurisdiction
Australia
Judgment Date
02 June 2021
Procedural Posture
Trees (disputes Between Neighbours) / Principal Judgment
Outcome
Application granted
Legal Topics
['tree Disputes' 'damage to Property' 'remedies' 'neighbour Law']
['environmental Law' 'property Law'] ['tree Disputes' 'damage to Property' 'remedies' 'neighbour Law']

Case Brief

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Procedural Posture

Trees (disputes Between Neighbours) / Principal Judgment

Legal Issues

  1. 1 ["Whether the respondent's tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property within the meaning of s 10(2) of the Trees (Disputes Between Neighbours) Act 2006" 'Whether the applicant made reasonable efforts to reach agreement with the owner of the land on which the tree is situated as required by s 10(1)(a)' 'What orders, if any, should be made in light of discretionary factors under s 12 of the Act']

Ratio Decidendi

Based on inspection and evidence, the trees (Schefflera and Phoenix palm) are found to have caused and are likely in the near future to cause damage to the applicant’s garage wall. This, together with the applicant’s reasonable attempts to resolve the dispute, satisfies the requirements of ss 7 and 10 of the Act. Orders are warranted for removal and replacement, but due to contributory factors (wall construction), the applicant must bear removal costs.

Court Disposition

Application granted

Orders

  • ['The applicant shall at its expense employ AQF level 3 qualified arborists to remove the Schefflera and the Phoenix palm to near ground level and poison their stumps with Glyphosate.' 'All refuse to be removed and the site tidied; applicant carries liability for any resulting property damage; works to be completed...