The Owners – Strata Plan No 7655 v The Owners – Strata Plan No 50081 [2018] NSWLEC 1222

The Owners – Strata Plan No 7655 v The Owners – Strata Plan No 50081 [2018] NSWLEC 1222

The Court was satisfied that the Liquidamber had damaged the 7.5-metre section of brick retaining wall nearest the tree because large surface roots were visible growing against the wall and the wall was most significantly displaced where the roots were largest. The evidence did not justify orders about the southern section or removed smaller trees. Because the tree's structural roots most likely had a structural relationship with the wall and removal or temporary removal of the wall could create a serious to catastrophic risk if the tree failed, the tree had to be removed before replacement of that section. As the wall functioned as a boundary retaining wall benefiting both parties, and...

Jurisdiction
Australia
Judgment Date
20 April 2018
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment and Final Orders After Hearing
Outcome
The application is upheld.
Legal Topics
['damage to Retaining Wall Allegedly Caused by Tree Roots' 'removal of Liquidamber Tree' 'rectification of Boundary Retaining Wall' 'apportionment of Rectification Costs' 'jurisdiction Under S 10 of the Trees (disputes Between Neighbours) Act 2006 (nsw)']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment'] ['damage to Retaining Wall Allegedly Caused by Tree Roots' 'removal of Liquidamber Tree' 'rectification of Boundary Retaining Wall' 'apportionment of Rectification Costs' 'jurisdiction Under S 10 of the Trees (disputes Between Neighbours) Act 2006 (nsw)']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the Liquidamber, avocado and privet trees caused damage to the applicants' retaining wall sufficient to satisfy s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." 'Whether the damaged retaining wall, or part of it, required rectification.' 'Whether the 7.5-metre section of retaining wall near the Liquidamber could be replaced without removing the Liquidamber.' 'How the costs of tree removal and retaining wall rectification should be apportioned between the parties.' 'Whether orders should be made about future plantings near the wall.']

Ratio Decidendi

The Court was satisfied that the Liquidamber had damaged the 7.5-metre section of brick retaining wall nearest the tree because large surface roots were visible growing against the wall and the wall was most significantly displaced where the roots were largest. The evidence did not justify orders about the southern section or removed smaller trees. Because the tree's structural roots most likely had a structural relationship with the wall and removal or temporary removal of the wall could create a serious to catastrophic risk if the tree failed, the tree had to be removed before replacement of that section. As the wall functioned as a boundary retaining wall benefiting both parties, and...

Court Disposition

The application is upheld.

Orders

  • ['The application is upheld.' 'Within 90 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the Liquidamber to ground level. The works are to be done in accordance with the NSW Code...