Haines v McNally [2007] NSWLEC 202

Haines v McNally [2007] NSWLEC 202

No order for removal of the cedar is warranted, as there is no imminent likelihood of structural damage; needle drop into gutters and consequential nuisance do not justify orders in this instance, and the applicants were on notice of these issues before purchase. Appropriate orders are made for specified root pruning by a qualified arborist, cost of root pruning to be borne by the respondents, and the reasonable cost of re-laying the impacted path to be shared equally between the parties. Additional costs for rainwater tank installation at the proposed location to be borne by the applicants.

Jurisdiction
Australia
Judgment Date
11 April 2007
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application for removal of the cedar refused; other orders made for root pruning and re-laying of path.
Legal Topics
['tree Disputes Between Neighbours' 'property Damage' 'nuisance']
['environmental Law' 'property Law'] ['tree Disputes Between Neighbours' 'property Damage' 'nuisance']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Himalayan Cedar at 33 Shamrock Parade should be removed due to alleged risk of structural and other property damage to 35 Shamrock Parade' 'Whether needle drop from the cedar constitutes grounds for remedial orders' 'Apportionment of responsibility for damage to paved path caused by roots' 'Responsibility for costs related to rainwater tank installation in proximity to tree roots']

Ratio Decidendi

No order for removal of the cedar is warranted, as there is no imminent likelihood of structural damage; needle drop into gutters and consequential nuisance do not justify orders in this instance, and the applicants were on notice of these issues before purchase. Appropriate orders are made for specified root pruning by a qualified arborist, cost of root pruning to be borne by the respondents, and the reasonable cost of re-laying the impacted path to be shared equally between the parties. Additional costs for rainwater tank installation at the proposed location to be borne by the applicants.

Court Disposition

Application for removal of the cedar refused; other orders made for root pruning and re-laying of path.

Orders

  • ['Specified roots of the cedar to be pruned by an arborist with AQF level 5 qualification, cost to be met by the owners of 33 Shamrock Parade.' 'Root-impacted portion of the path to be removed and re-laid as a humped path, with the cost shared equally between both parties.' 'No removal of major trunk roots for...