Prince & anor v Davies & anor [2011] NSWLEC 1087

Prince & anor v Davies & anor [2011] NSWLEC 1087

Roots from the respondents' Evergreen Alder had caused displacement of some paving and were likely to cause further displacement in the near future, enlivening jurisdiction under s 10(2). However, removal of the tree was disproportionate to the damage caused. The appropriate order was limited repair of the affected paving area, root removal, installation of a root barrier, and reimbursement of the repair cost by the respondents. Debris, mould, lichens and bird droppings did not warrant tree intervention orders, and costs could not be awarded by the Commissioner.

Jurisdiction
Australia
Judgment Date
11 April 2011
Procedural Posture
Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Application to remove tree dismissed; application to repair damage upheld in part.
Legal Topics
['removal of Tree' 'damage to Paving' 'tree Roots' 'debris, Mould and Bird Droppings' 'costs Jurisdiction']
['trees Disputes Between Neighbours' 'property Damage'] ['removal of Tree' 'damage to Paving' 'tree Roots' 'debris, Mould and Bird Droppings' 'costs Jurisdiction']

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Procedural Posture

Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ["Whether the respondents' tree had caused, was causing, or was likely in the near future to cause damage to the applicants' property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether removal of the tree was warranted for damage alleged by the applicants.' 'Whether debris in gutters, mould or lichens on paving, pollen staining, and bird droppings warranted orders under the Act.' 'Whether the applicants could recover application-related costs in these proceedings.']

Ratio Decidendi

Roots from the respondents' Evergreen Alder had caused displacement of some paving and were likely to cause further displacement in the near future, enlivening jurisdiction under s 10(2). However, removal of the tree was disproportionate to the damage caused. The appropriate order was limited repair of the affected paving area, root removal, installation of a root barrier, and reimbursement of the repair cost by the respondents. Debris, mould, lichens and bird droppings did not warrant tree intervention orders, and costs could not be awarded by the Commissioner.

Court Disposition

Application to remove tree dismissed; application to repair damage upheld in part.

Orders

  • ['The application to remove the tree is dismissed.' 'The application to repair the damage is upheld in part.' 'Within 90 days of the date of these orders, being the date of this judgment, the applicants are to obtain 3 quotes for the lifting and replacing of the paving and the installation of root barrier as...