Gan v Anderson & anor [2008] NSWLEC 1257

Gan v Anderson & anor [2008] NSWLEC 1257

The Court was comfortably satisfied that roots from the respondents' Cypress tree caused sewer pipe penetration at points B and C and likely caused lifting of the path near the tree, but not satisfied that the Cypress tree caused root penetration at point A. Because the applicants had known of root penetration for about 10 years and did not notify the respondents before November 2007, they were disentitled to compensation for earlier damage, but the respondents' lack of response after notice justified reimbursement of the February 2008 pipe clearing and CCTV inspection. Future damage could be prevented by relaying the relevant sewer pipe and pathway without removing the Cypress tree, and...

Jurisdiction
Australia
Judgment Date
24 June 2008
Procedural Posture
Trees (neighbours) Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application allowed in part; compensation and protective work conditions ordered, but removal of the Cypress tree was not ordered.
Legal Topics
['roots in Sewer Pipe' 'damage to Pathway' 'compensation for Tree Root Damage' 'delay in Giving Notice' 'orders Under S 9 of the Trees (disputes Between Neighbours) Act 2006']
['land and Environment' 'trees Disputes Between Neighbours'] ['roots in Sewer Pipe' 'damage to Pathway' 'compensation for Tree Root Damage' 'delay in Giving Notice' 'orders Under S 9 of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Trees (neighbours) Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether roots from the respondents' Cypress tree had penetrated the applicants' sewer pipe and caused damage requiring action." 'Whether the applicants were entitled to compensation for past sewer clearing and inspection costs.' 'Whether the Cypress tree should be removed or whether replacement of part of the sewer pipe and pathway would prevent future damage.' "What effect the applicants' delay in notifying the respondents of root intrusion and pathway damage had on any compensation or contribution ordered."]

Ratio Decidendi

The Court was comfortably satisfied that roots from the respondents' Cypress tree caused sewer pipe penetration at points B and C and likely caused lifting of the path near the tree, but not satisfied that the Cypress tree caused root penetration at point A. Because the applicants had known of root penetration for about 10 years and did not notify the respondents before November 2007, they were disentitled to compensation for earlier damage, but the respondents' lack of response after notice justified reimbursement of the February 2008 pipe clearing and CCTV inspection. Future damage could be prevented by relaying the relevant sewer pipe and pathway without removing the Cypress tree, and...

Court Disposition

Application allowed in part; compensation and protective work conditions ordered, but removal of the Cypress tree was not ordered.

Orders

  • ["Ms Field and Mr Anderson are to pay Mr and Mrs Gan the sum of $1320 within 28 days of service upon Ms Field and Mr Anderson of a receipted invoice for the completed work of re-laying the Gans' sewer pipe into Mr and Mrs Gans' property to a point at least 12 m from the front inspection point for the sewer pipe."...