Thomas & anor v Holmes & Anor (No 2) [2017] NSWLEC 1443

Thomas & anor v Holmes & Anor (No 2) [2017] NSWLEC 1443

The applicants may only recover for works and costs where evidence shows the respondents' tree was a cause of damage to specific identified structures (the lower masonry retaining wall and a 2.5m section of stairs), and the respondents' contribution is to be apportioned as 60% for the wall and 90% for the stairs, with a fixed sum payable reflecting reasonable estimates; expanded works beyond the tree-caused damage are outside the Court’s jurisdiction under the Trees Act and are not recoverable from the respondents.

Jurisdiction
Australia
Judgment Date
16 August 2017
Procedural Posture
Tree Dispute Application / Post Orders Variation/amendment Hearing
Outcome
Application to amend the previous 11 April 2017 orders granted in part. Original removal application dismissed. Orders for respondents' contribution amended and fixed to specified works and sums.
Legal Topics
['trees (disputes Between Neighbours) Act 2006' 'damage to Property by Tree Roots' 'costs and Apportionment' 'scope of Orders in Tree Disputes']
['environmental Law' 'property Law'] ['trees (disputes Between Neighbours) Act 2006' 'damage to Property by Tree Roots' 'costs and Apportionment' 'scope of Orders in Tree Disputes']

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Procedural Posture

Tree Dispute Application / Post Orders Variation/amendment Hearing

Legal Issues

  1. 1 ['Whether orders made regarding apportionment and scope of rectification works in a tree dispute should be amended' "What works fall within the Court's jurisdiction under the Trees Act" 'Whether evidence supports expanded works and increased compensation']

Ratio Decidendi

The applicants may only recover for works and costs where evidence shows the respondents' tree was a cause of damage to specific identified structures (the lower masonry retaining wall and a 2.5m section of stairs), and the respondents' contribution is to be apportioned as 60% for the wall and 90% for the stairs, with a fixed sum payable reflecting reasonable estimates; expanded works beyond the tree-caused damage are outside the Court’s jurisdiction under the Trees Act and are not recoverable from the respondents.

Court Disposition

Application to amend the previous 11 April 2017 orders granted in part. Original removal application dismissed. Orders for respondents' contribution amended and fixed to specified works and sums.

Orders

  • ['Application to remove the tree is dismissed.' 'Applicants to engage and pay for a qualified contractor to reconstruct the lower section of the masonry wall and reinstall a 2.5m section of stairs in accordance with defined standards and without damaging specified tree roots.' 'Works to be completed within 6 months...