The Owners – Strata Plan No. 47463 v The Owners – Strata Plan No. 76269 [2018] NSWLEC 1598

The Owners – Strata Plan No. 47463 v The Owners – Strata Plan No. 76269 [2018] NSWLEC 1598

The fence's decay was mainly due to posts being set directly in damp soil without concrete footings, not tree debris. Dead and dying wattles should be removed as they could cause minor damage activating the Court's jurisdiction to order works; healthy she-oaks need not be removed but pruned for building clearance.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 October 2018
Procedural Posture
Class 2 / Principal Judgment
Outcome
Orders made for removal of three wattles, pruning of four she-oaks, replacement of damaged section of fence, and cost sharing.
Legal Topics
['trees (disputes Between Neighbours)' 'dividing Fences' 'damage to Property']
['property Law' 'environmental Law'] ['trees (disputes Between Neighbours)' 'dividing Fences' 'damage to Property']

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Procedural Posture

Class 2 / Principal Judgment

Legal Issues

  1. 1 ['Whether tree debris caused the collapse of the boundary fence' 'Whether all seven trees should be removed' 'Whether replacement of the boundary fence is required' 'Whether tree pruning is necessary for building clearance']

Ratio Decidendi

The fence's decay was mainly due to posts being set directly in damp soil without concrete footings, not tree debris. Dead and dying wattles should be removed as they could cause minor damage activating the Court's jurisdiction to order works; healthy she-oaks need not be removed but pruned for building clearance.

Court Disposition

Orders made for removal of three wattles, pruning of four she-oaks, replacement of damaged section of fence, and cost sharing.

Orders

  • ["Within 30 days, respondent to engage qualified arborist to remove three wattles and prune four she-oaks so no limb is within one metre of applicant's building. Works to comply with WorkCover NSW Code of Practice and AS4373." "Respondent to give applicant two days' notice of works." 'Applicant to allow necessary...