Argyrou & anor v Henderson & anor [2017] NSWLEC 1422

Argyrou & anor v Henderson & anor [2017] NSWLEC 1422

The Court dismissed the applications for tree removal, compensation and rectification because, except for some lifting of pavers by Liquidambar roots, the applicants did not prove to the required level of satisfaction a sufficient nexus between the Liquidambar and the alleged damage or likely near-future damage. The paving disruption was minor, visible when the applicants purchased the property, and capable of being managed without excessive root removal, so removal or rectification at the respondents' expense was not warranted. However, the included bark and reaction wood at the junction of the co-dominant stems raised sufficient concern about potential stem failure to justify orders...

Jurisdiction
Australia
Judgment Date
08 August 2017
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Final Orders
Outcome
The application to remove the tree and the application for compensation were dismissed; limited orders were made requiring the respondents to arrange and pay for arboricultural inspection, internal diagnostic testing and reporting for the Liquidambar.
Legal Topics
['damage to Property' 'potential Injury' 'tree Roots and Encroachment' 'compensation and Rectification' 'removal of Tree' 'sewer Blockage' 'pavers and Trip Hazard' 'dividing Fence' 'leaf Litter and Guttering' 'arboricultural Diagnostic Testing']
['trees Disputes Between Neighbours' 'property' 'land and Environment'] ['damage to Property' 'potential Injury' 'tree Roots and Encroachment' 'compensation and Rectification' 'removal of Tree' 'sewer Blockage' 'pavers and Trip Hazard' 'dividing Fence' 'leaf Litter and Guttering' 'arboricultural Diagnostic Testing']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the respondents' Liquidambar had caused, was causing, or was likely in the near future to cause damage to the applicants' property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Liquidambar was likely to cause injury to any person.' "Whether the tree should be removed at the respondents' expense." 'Whether compensation or rectification costs should be ordered for reports and invoices, sewer replacement, landscaping and pavers, and fence replacement.' 'Whether the structure of the co-dominant stems required further aerial inspection and internal diagnostic testing.']

Ratio Decidendi

The Court dismissed the applications for tree removal, compensation and rectification because, except for some lifting of pavers by Liquidambar roots, the applicants did not prove to the required level of satisfaction a sufficient nexus between the Liquidambar and the alleged damage or likely near-future damage. The paving disruption was minor, visible when the applicants purchased the property, and capable of being managed without excessive root removal, so removal or rectification at the respondents' expense was not warranted. However, the included bark and reaction wood at the junction of the co-dominant stems raised sufficient concern about potential stem failure to justify orders...

Court Disposition

The application to remove the tree and the application for compensation were dismissed; limited orders were made requiring the respondents to arrange and pay for arboricultural inspection, internal diagnostic testing and reporting for the Liquidambar.

Orders

  • ['The application to remove the tree is dismissed.' 'The application for compensation is dismissed.' 'Within 60 days of the date of these orders the respondents are to have engaged and paid for a consulting arborist with a minimum qualification in Arboriculture of AQF level 5 to undertake an aerial inspection and...