MacPhail v Ware [2008] NSWLEC 1213

MacPhail v Ware [2008] NSWLEC 1213

The Jacaranda probably caused earlier lifting of the driveway, but the respondents had no realistic prior opportunity to abate the damage and Mr Ware's root pruning was a proper response, so no removal or compensation was ordered for that tree. The gum tree was principally on the respondents' property but was dead and unlikely to cause future damage, so no stump removal was ordered; however, because part of the driveway was cracked when the respondents' contractors dropped a trunk section, the respondents were to contribute $200. The Liquidambar was at least 60% on the respondents' property and would continue to damage the driveway and any new driveway, so it was to be removed, with the...

Jurisdiction
Australia
Judgment Date
14 May 2008
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Three Trees and Alleged Driveway Damage / Ex Tempore Judgment After Hearing
Outcome
Application granted in part; orders made under s 9 of the Trees (Disputes Between Neighbours) Act 2006, but the formal orders were not reproduced in the judgment.
Legal Topics
['tree Removal' 'compensation for Driveway Damage' 'jurisdiction Where a Tree Is Principally on Neighbouring Land' 'notice and Opportunity to Abate Tree Caused Damage']
['trees Disputes' 'neighbour Disputes' 'property Damage'] ['tree Removal' 'compensation for Driveway Damage' 'jurisdiction Where a Tree Is Principally on Neighbouring Land' 'notice and Opportunity to Abate Tree Caused Damage']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Three Trees and Alleged Driveway Damage / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether each tree had caused, was causing, or was likely in the near future to cause damage to the applicants' property, or was likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the Jacaranda and Liquidambar or gum tree were located principally on the respondents' property for the purposes of s 4(3) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Court should order removal of any of the three trees.' "Whether the respondents should contribute to the cost of replacing the applicants' driveway."]

Ratio Decidendi

The Jacaranda probably caused earlier lifting of the driveway, but the respondents had no realistic prior opportunity to abate the damage and Mr Ware's root pruning was a proper response, so no removal or compensation was ordered for that tree. The gum tree was principally on the respondents' property but was dead and unlikely to cause future damage, so no stump removal was ordered; however, because part of the driveway was cracked when the respondents' contractors dropped a trunk section, the respondents were to contribute $200. The Liquidambar was at least 60% on the respondents' property and would continue to damage the driveway and any new driveway, so it was to be removed, with the...

Court Disposition

Application granted in part; orders made under s 9 of the Trees (Disputes Between Neighbours) Act 2006, but the formal orders were not reproduced in the judgment.

Orders

  • ['No order for removal of or interference with the Jacaranda and no contribution to reinstatement of the driveway for damage that might have been caused by the Jacaranda.' 'No order for removal of the remaining gum tree stump.' 'Mr and Mrs Ware are to pay Mr and Mrs MacPhail $200 within 28 days of service on the...