Spillane v Burgess [2009] NSWLEC 1289

Spillane v Burgess [2009] NSWLEC 1289

The Court declined to order removal of the Cypress Pines because a root barrier would adequately address future problems, the trees made a modest contribution to amenity, and there were no safety reasons requiring removal. The Court accepted that the trees and their roots contributed to water extraction and settlement affecting the applicants' house, but apportioned responsibility to account for drought, the applicants' Silver Birch tree, and damage before the respondents were put on notice. Certain compensation claims were dismissed as outside jurisdiction or unsupported by evidence, while limited reimbursement was ordered for a root barrier and deep foundation injection work.

Jurisdiction
Australia
Judgment Date
17 July 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing
Outcome
Application granted in part; tree removal refused; limited reimbursement ordered; several compensation claims dismissed.
Legal Topics
['cypress Pines' 'tree Roots' 'subsidence' 'root Barrier' 'removal of Trees' 'damage to House and Driveway' 'jurisdiction' 'costs']
['trees Disputes' 'neighbour Disputes' 'compensation'] ['cypress Pines' 'tree Roots' 'subsidence' 'root Barrier' 'removal of Trees' 'damage to House and Driveway' 'jurisdiction' 'costs']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether orders should be made for removal of five Cypress Pines on the respondents' property." "Whether the trees caused or contributed to damage to the applicants' house and driveway and, if so, what compensation should be ordered." 'Whether claims for loss of property value, time and stress, costs, internal repairs, driveway damage and structural underpinning were within jurisdiction or supported by evidence.' 'Whether a root barrier was an appropriate response to prevent future damage rather than removal of the trees.' "How any compensation should be apportioned having regard to drought, prior notice to the respondents, the applicants' Silver Birch tree and evidentiary limitations."]

Ratio Decidendi

The Court declined to order removal of the Cypress Pines because a root barrier would adequately address future problems, the trees made a modest contribution to amenity, and there were no safety reasons requiring removal. The Court accepted that the trees and their roots contributed to water extraction and settlement affecting the applicants' house, but apportioned responsibility to account for drought, the applicants' Silver Birch tree, and damage before the respondents were put on notice. Certain compensation claims were dismissed as outside jurisdiction or unsupported by evidence, while limited reimbursement was ordered for a root barrier and deep foundation injection work.

Court Disposition

Application granted in part; tree removal refused; limited reimbursement ordered; several compensation claims dismissed.

Orders

  • ['The application is granted to the extent provided in orders (2) to (11).' 'The applicants shall install a root barrier 900 mm below ground with the top of the barrier to be level with the level of the top of the adjacent driveway strips.' "The root barrier shall extend from point commencing 2 m on the street side...