O’Neill v Brookes [2023] NSWLEC 1285

O’Neill v Brookes [2023] NSWLEC 1285

The tree caused damage to the retaining wall, brickwork, and concrete slab. The preferred order is to remove the tree, since a solution retaining the tree would encroach onto the applicants' property and they did not consent to this. The respondents must bear the cost of tree removal, but costs for repair of the boundary retaining wall are to be shared equally. Other minor property repairs are the applicants' responsibility.

Parties
First Applicant: Luke O'Neill; Second Applicant: Robyn O'Neill; First Respondent: Clive Brookes; Second Respondent: Dianne Brookes
Jurisdiction
Australia
Judgment Date
08 June 2023
Procedural Posture
Tree Dispute (neighbouring Property) / Judgment
Outcome
Application granted in part; detailed orders made for tree removal and division of repair costs.
Legal Topics
Tree Disputes, Neighbourhood Disputes, Boundary Retaining Walls, Division of Costs, Orders for Removal and Repair
Property Law Environmental Law Tree Disputes Neighbourhood Disputes Boundary Retaining Walls Division of Costs Orders for Removal and Repair

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Parties

Luke O'Neill

First Applicant

Robyn O'Neill

Second Applicant

Clive Brookes

First Respondent

Dianne Brookes

Second Respondent

Procedural Posture

Tree Dispute (neighbouring Property) / Judgment

Legal Issues

  1. 1 Whether the respondents' tree caused damage to the applicants' property
  2. 2 Whether the tree must be removed to allow repair of the retaining wall
  3. 3 How costs of tree removal and wall repair should be apportioned

Ratio Decidendi

The tree caused damage to the retaining wall, brickwork, and concrete slab. The preferred order is to remove the tree, since a solution retaining the tree would encroach onto the applicants' property and they did not consent to this. The respondents must bear the cost of tree removal, but costs for repair of the boundary retaining wall are to be shared equally. Other minor property repairs are the applicants' responsibility.

Court Disposition

Application granted in part; detailed orders made for tree removal and division of repair costs.

Orders

  • Respondents to engage and pay for qualified arborist to remove the Turpentine tree to no more than 300 mm above ground within 4 weeks.
  • Respondents to engage and pay for grinding of the tree below ground level as specified within 5 weeks.