White v Blacket [2018] NSWLEC 1386

White v Blacket [2018] NSWLEC 1386

The Court was satisfied that the removed Spotted Gum contributed to the wall damage and therefore that s 10(2)(a) was met, but the principal cause of the wall failure was that the wall had not been properly engineered or constructed for the existing conditions. The respondents had promptly removed the tree after being notified, had not contributed to the damage, and had already contributed to the overall solution by removing the tree. After considering s 12, the respondents were not required to pay for repairs, and access through their property for materials storage or transport was unreasonable because the works could be undertaken from within the applicants' property despite greater cost.

Jurisdiction
Australia
Judgment Date
20 July 2018
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
Orders made requiring the applicants to engage and pay for replacement wall works, with limited access to the respondents' property for excavation and drainage installation; the respondents were not ordered to contribute to repair costs.
Legal Topics
['damage Caused by Tree' 'boundary Retaining Wall' 'contribution to Repair Costs' 'access for Works' 'application of S 10(2)(a) and S 12 of the Trees (disputes Between Neighbours) Act 2006 (nsw)']
['land and Environment' 'trees Disputes Between Neighbours' 'property Damage'] ['damage Caused by Tree' 'boundary Retaining Wall' 'contribution to Repair Costs' 'access for Works' 'application of S 10(2)(a) and S 12 of the Trees (disputes Between Neighbours) Act 2006 (nsw)']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether the respondents' tree caused damage to the applicants' boundary wall for the purposes of s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." 'Whether the respondents should contribute to or pay for the cost of replacing the wall.' "Whether access for the wall replacement works should be through and on the respondents' property." 'What orders were appropriate after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006 (NSW).']

Ratio Decidendi

The Court was satisfied that the removed Spotted Gum contributed to the wall damage and therefore that s 10(2)(a) was met, but the principal cause of the wall failure was that the wall had not been properly engineered or constructed for the existing conditions. The respondents had promptly removed the tree after being notified, had not contributed to the damage, and had already contributed to the overall solution by removing the tree. After considering s 12, the respondents were not required to pay for repairs, and access through their property for materials storage or transport was unreasonable because the works could be undertaken from within the applicants' property despite greater cost.

Court Disposition

Orders made requiring the applicants to engage and pay for replacement wall works, with limited access to the respondents' property for excavation and drainage installation; the respondents were not ordered to contribute to repair costs.

Orders

  • ['Within 12 months of the date of these orders, the applicants are to engage an engineer to draw and specify a replacement wall, and engage and pay for a contractor to construct the wall.' "Access is to be from within the applicants' property. Excavation into the respondents' property is to be minimised; damage to...