Mannion v Raven - [2025] NSWLEC 1218

Land and Environment Court

New South Wales

Medium Neutral Citation: Mannion v Raven [2025] NSWLEC 1218
Hearing dates: 4 November 2024
Date of orders: 08 April 2025
Decision date: 08 April 2025
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) The respondent shall engage and pay a fencing contractor or builder with all appropriate insurances (the contractor), to relocate the common boundary fence post close to and east of the applicants’ back path drain, about 600mm further east so the post is not impacted by the tree’s root thickening. The contractor shall cut and modify palings, and the bottom rail as required, to clear the fence from contact with roots of the tree and provide a gap of at least 75mm between the fence and the tree’s roots. The contractor shall repair the fence such that the top of the fence, and the top and bottom rails, each form a flat line along the entire length of the fence, consistent with the average slope of the land. The contractor shall ensure the fence is sturdy, vertical, and aligned along the boundary. The works shall be completed within 45 days of the date of these orders.
(2) The applicants shall provide all reasonable access for the fencing works, subject to at least 72 hours emailed notice of the date and approximate start time of the works.
(3) The fencing works shall comply with relevant Work Health and Safety requirements and shall be undertaken during normal daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Roots damaging common boundary fence and paved path – apprehension of further damage – s 12(h) damage impacted by applicants’ omissions

Legislation Cited:
Environmental Planning and Assessment Act 1979
Heritage Act 1977
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12
State Environmental Planning Policy (Biodiversity and Conservation) 2021

Cases Cited:
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4373-2007, Pruning of amenity trees
AS4970-2009, Protection of trees on development sites
Inner West Development Control Plan 2023

Category: Principal judgment
Parties: Matthew Mannion (First Applicant)
Tracey Mannion (Second Applicant)
Nicole Raven (Respondent)
Representation: M Mannion (Self-represented) (First Applicant)
T Mannion (Self-represented) (Second Applicant)
N Raven (Self-represented) (Respondent)

File Number(s): 2024/321502
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Matthew and Tracey Mannion, the applicants, own and occupy a long, narrow rectangular property in Leichhardt, that is approximately 6.1 metres (m) wide and 274m² in area. After completing dwelling renovations in or around 2014, the applicants installed a single garage with a first-floor studio at the back of their land, under a Complying Development Certificate (CDC) registered with Leichhardt Municipal Council (Council) on 25 October 2014.
Nicole Raven, the respondent, owned and occupied the neighbouring south side property. The parties shared a boundary which extended from east at the street frontage to west at the rear. A mature Chinese…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mannion v Raven

Details

AGLC: Mannion v Raven [2025] NSWLEC 1218
Case: [2025] NSWLEC 1218
Decision Date: 08 April 2025

CaseChat Overview and Summary

Mannion v Raven was a matter heard by the Magistrates Court of Victoria, where the applicants sought an order for the respondent to move a fence post located close to the applicants’ property. The dispute arose from the root growth of a tree, which had caused the fence post to become unstable and obstructed the applicants' back path drain. The applicants sought to have the fence post relocated to avoid further impact from the tree’s root thickening.

The legal issues before the court were whether the respondent was required to move the fence post, and if so, the terms and conditions of such an order. The applicants argued that the root growth had caused significant damage to the fence post and posed a risk to the property and the path. The respondent contended that there was no obligation to move the fence post, and that the root growth was not within their control.

The court found that the respondent had a duty to maintain the fence in a safe condition and to avoid obstructing the applicants' access to their property. The court determined that the root growth had caused the fence post to become unstable, and that it was necessary to relocate the post to prevent further damage and obstruction. The court ordered the respondent to engage a fencing contractor to move the fence post, ensuring it was sturdy, vertical, and aligned along the boundary. The court also set out specific requirements for the works, including the distance the post should be moved, the gap between the fence and the tree roots, and the timeline for completion.

The court further ordered the applicants to provide reasonable access for the fencing works and that the works should comply with Work Health and Safety requirements. The respondents were also required to provide notice of the works to the applicants. The court made clear that these orders were to be completed within 45 days of the date of the order.

Orders

Orders of the court

The Court orders that:

(1) The respondent shall engage and pay a fencing contractor or builder with all appropriate insurances (the contractor), to relocate the common boundary fence post close to and east of the applicants’ back path drain, about 600mm further east so the post is not impacted by the tree’s root thickening. The contractor shall cut and modify palings, and the bottom rail as required, to clear the fence from contact with roots of the tree and provide a gap of at least 75mm between the fence and the tree’s roots. The contractor shall repair the fence such that the top of the fence, and the top and bottom rails, each form a flat line along the entire length of the fence, consistent with the average slope of the land. The contractor shall ensure the fence is sturdy, vertical, and aligned along the boundary. The works shall be completed within 45 days of the date of these orders.

(2) The applicants shall provide all reasonable access for the fencing works, subject to at least 72 hours emailed notice of the date and approximate start time of the works.

(3) The fencing works shall comply with relevant Work Health and Safety requirements and shall be undertaken during normal daytime working hours.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mannion v Raven [2025] NSWLEC 1218
Hearing dates:	4 November 2024
Date of orders:	08 April 2025
Decision date:	08 April 2025
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The respondent shall engage and pay a fencing contractor or builder with all appropriate insurances (the contractor), to relocate the common boundary fence post close to and east of the applicants’ back path drain, about 600mm further east so the post is not impacted by the tree’s root thickening. The contractor shall cut and modify palings, and the bottom rail as required, to clear the fence from contact with roots of the tree and provide a gap of at least 75mm between the fence and the tree’s roots. The contractor shall repair the fence such that the top of the fence, and the top and bottom rails, each form a flat line along the entire length of the fence, consistent with the average slope of the land. The contractor shall ensure the fence is sturdy, vertical, and aligned along the boundary. The works shall be completed within 45 days of the date of these orders. (2) The applicants shall provide all reasonable access for the fencing works, subject to at least 72 hours emailed notice of the date and approximate start time of the works. (3) The fencing works shall comply with relevant Work Health and Safety requirements and shall be undertaken during normal daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Roots damaging common boundary fence and paved path – apprehension of further damage – s 12(h) damage impacted by applicants’ omissions
Legislation Cited:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12 State Environmental Planning Policy (Biodiversity and Conservation) 2021
Cases Cited:	Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373-2007, Pruning of amenity trees AS4970-2009, Protection of trees on development sites Inner West Development Control Plan 2023
Category:	Principal judgment
Parties:	Matthew Mannion (First Applicant) Tracey Mannion (Second Applicant) Nicole Raven (Respondent)
Representation:	M Mannion (Self-represented) (First Applicant) T Mannion (Self-represented) (Second Applicant) N Raven (Self-represented) (Respondent)
File Number(s):	2024/321502
Publication restriction:	Nil