Thomas & anor v Holmes & anor [2017] NSWLEC 1192

Thomas & anor v Holmes & anor [2017] NSWLEC 1192

The Court was satisfied that roots of the tree were a cause of damage to the lower masonry wall, a minor and recent separation of the angled joined section of stormwater pipe behind that wall, and displacement of paved stairs with potential for future damage, so s 10(2)(a) was engaged for those matters. The Court was not satisfied that the tree caused damage to the portico beyond the wall's support, any other part of the stormwater drain, the timber retaining wall to the required standard, or the dividing fence. Considering the s 12 discretionary matters, including the tree's amenity, biodiversity value, proximity to the boundary, the risk of root pruning compromising the tree, and other...

Jurisdiction
Australia
Judgment Date
11 April 2017
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Orders Made
Outcome
Application allowed in part; application to remove the tree dismissed; rectification and access orders made with apportioned reimbursement by respondents.
Legal Topics
['tree Roots Causing Property Damage' 'retaining Walls' 'stormwater Pipe Damage' 'access Stairs and Paving' 'dividing Fence' 'discretionary Orders Under Trees (disputes Between Neighbours) Act 2006']
['trees and Neighbours' 'property' 'land and Environment Court'] ['tree Roots Causing Property Damage' 'retaining Walls' 'stormwater Pipe Damage' 'access Stairs and Paving' 'dividing Fence' 'discretionary Orders Under Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Orders Made

Legal Issues

  1. 1 ["Whether roots from the respondents' mature Eucalyptus robusta caused, were causing, or were likely in the near future to cause damage to the applicants' property for the purposes of s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree should be removed or whether rectification works and cost contributions should be ordered.' 'Whether s 13A of the Dividing Fences Act 1991 could be applied to order replacement of the dividing fence.' 'Whether compensation including investigative work and expert report costs could be ordered by a Commissioner.']

Ratio Decidendi

The Court was satisfied that roots of the tree were a cause of damage to the lower masonry wall, a minor and recent separation of the angled joined section of stormwater pipe behind that wall, and displacement of paved stairs with potential for future damage, so s 10(2)(a) was engaged for those matters. The Court was not satisfied that the tree caused damage to the portico beyond the wall's support, any other part of the stormwater drain, the timber retaining wall to the required standard, or the dividing fence. Considering the s 12 discretionary matters, including the tree's amenity, biodiversity value, proximity to the boundary, the risk of root pruning compromising the tree, and other...

Court Disposition

Application allowed in part; application to remove the tree dismissed; rectification and access orders made with apportioned reimbursement by respondents.

Orders

  • ['The application to remove the tree is dismissed.' 'Within 30 days of the date of the orders, the applicants are to engage and pay for a suitably qualified engineer, architect or landscape architect to design a masonry retaining wall and section of stairs as described in paragraphs [44] and [45], and provide the...