Colling v Wilson [2009] NSWLEC 1061

Colling v Wilson [2009] NSWLEC 1061

The DVD and evidence showed that roots consistent with the respondents' pine trees had intruded into the applicants' terracotta sewer pipes and caused past damage, enlivening jurisdiction under the Trees (Disputes Between Neighbours) Act 2006. Removal of the trees was not appropriate because they had screening and aesthetic value and the sewer problem could be rectified by relining or replacement. Given the age and condition of the pipes as well as the impact of the tree roots, the respondents were required to pay the November 2008 sewer clearance cost and to contribute 50% of future relining or replacement costs up to $5000 if undertaken within 12 months. The fence claim was dismissed...

Jurisdiction
Australia
Judgment Date
17 February 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Leighton Green Trees, Sewer Damage and a Fence / Ex Tempore Judgment After Hearing
Outcome
Orders made under s 9 of the Trees (Disputes Between Neighbours) Act 2006; fence claim dismissed; sewer compensation and conditional contribution ordered; tree removal not ordered.
Legal Topics
['leighton Green Trees' 'tree Root Damage to Sewer Pipes' 'dividing Fences' 'jurisdiction' 'compensation and Apportionment']
['land and Environment' 'trees Disputes Between Neighbours' 'property'] ['leighton Green Trees' 'tree Root Damage to Sewer Pipes' 'dividing Fences' 'jurisdiction' 'compensation and Apportionment']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Leighton Green Trees, Sewer Damage and a Fence / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether five Leighton Green trees on the respondents' property should be removed." 'Whether the respondents should compensate the applicants for sewer blockage clearances caused by tree roots.' 'Whether the Court should order replacement or repair of part of the corrugated fibre cement fence between the properties.' 'Whether the applicants could recover report costs and the Court application fee in these proceedings.' "Whether the respondents should contribute to future relining or replacement of the applicants' sewer line."]

Ratio Decidendi

The DVD and evidence showed that roots consistent with the respondents' pine trees had intruded into the applicants' terracotta sewer pipes and caused past damage, enlivening jurisdiction under the Trees (Disputes Between Neighbours) Act 2006. Removal of the trees was not appropriate because they had screening and aesthetic value and the sewer problem could be rectified by relining or replacement. Given the age and condition of the pipes as well as the impact of the tree roots, the respondents were required to pay the November 2008 sewer clearance cost and to contribute 50% of future relining or replacement costs up to $5000 if undertaken within 12 months. The fence claim was dismissed...

Court Disposition

Orders made under s 9 of the Trees (Disputes Between Neighbours) Act 2006; fence claim dismissed; sewer compensation and conditional contribution ordered; tree removal not ordered.

Orders

  • ['The claim with respect to the fence is dismissed.' 'With respect to past sewer clearances, the Wilsons are jointly and severally liable to pay the sum of $810 to the Collings within 28 days of this hearing.' 'If Mr and Mrs Colling undertake the work either of relining or replacing their household sewer line with...