Andelman v The Owners – Strata Plan No 4829 [2019] NSWLEC 1533

Andelman v The Owners – Strata Plan No 4829 [2019] NSWLEC 1533

The climbing fig was a tree for the purposes of the statutory scheme, was principally situated on the respondent's adjoining land, and was damaging and would continue to damage the boundary fence. The applicants had made reasonable effort to reach agreement. Because there was no reasonable alternative to removing the remaining climbing fig plants to prevent further damage, the respondent was ordered to engage and pay for removal and poisoning of remaining parts.

Jurisdiction
Australia
Judgment Date
30 October 2019
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
The application is granted.
Legal Topics
['damage to Boundary Fence' 'removal of Climbing Fig' 'definition of Tree as Including a Vine' 'reasonable Effort to Reach Agreement']
['trees Disputes Between Neighbours' 'property Law'] ['damage to Boundary Fence' 'removal of Climbing Fig' 'definition of Tree as Including a Vine' 'reasonable Effort to Reach Agreement']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ['Whether the climbing fig was a tree for the purposes of the Trees (Disputes Between Neighbours) Act 2006 (NSW).' "Whether the climbing fig was principally situated on the respondent's land adjoining the applicants' land." 'Whether the climbing fig was damaging the boundary fence.' 'Whether the applicants had made reasonable effort to reach agreement with the respondent.' 'Whether orders should be made for removal of the remaining climbing fig plants.']

Ratio Decidendi

The climbing fig was a tree for the purposes of the statutory scheme, was principally situated on the respondent's adjoining land, and was damaging and would continue to damage the boundary fence. The applicants had made reasonable effort to reach agreement. Because there was no reasonable alternative to removing the remaining climbing fig plants to prevent further damage, the respondent was ordered to engage and pay for removal and poisoning of remaining parts.

Court Disposition

The application is granted.

Orders

  • ['The application is granted.' 'Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably experienced contractor with all appropriate insurances to cut and remove the climbing fig plants growing along the boundary fence shared with the applicants, and poison any remaining parts...