O’Connell v Gallagher [2007] NSWLEC 718

O’Connell v Gallagher [2007] NSWLEC 718

There is insufficient evidence the Lilly Pilly caused damage to the sewer or justified compensation. The applicants failed to show, on balance of probabilities, that the roots causing the sewer blockage were from the Lilly Pilly, based on the pipe location, lack of root samples, and proximity to other trees. Fruit drop risk has been satisfactorily abated by respondent’s pruning and commitment to continued pruning. Damage to the low brick wall and strain on the hot water pipe is likely caused by the tree, meeting the statutory test for intervention. Given applicants' lack of timely preventative steps, repair costs are to be shared equally.

Jurisdiction
Australia
Judgment Date
19 October 2007
Procedural Posture
Neighbour Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Decision at First Instance
Outcome
Application to remove the tree refused. Sewer repair/maintenance compensation denied. Orders made for shared repair of the low brick wall.
Legal Topics
['trees on Neighbouring Land' 'damage to Property' 'compensation Claims']
['property Law' 'environmental Law'] ['trees on Neighbouring Land' 'damage to Property' 'compensation Claims']

Case Brief

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Procedural Posture

Neighbour Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Decision at First Instance

Legal Issues

  1. 1 ["Whether the Lilly Pilly tree caused or is likely to cause damage or injury to the applicants' property or persons as per s 10(2) of the Act" 'Whether the applicants are entitled to removal of the tree, compensation for sewer repairs and chemical treatment, and repairs to a low brick wall']

Ratio Decidendi

There is insufficient evidence the Lilly Pilly caused damage to the sewer or justified compensation. The applicants failed to show, on balance of probabilities, that the roots causing the sewer blockage were from the Lilly Pilly, based on the pipe location, lack of root samples, and proximity to other trees. Fruit drop risk has been satisfactorily abated by respondent’s pruning and commitment to continued pruning. Damage to the low brick wall and strain on the hot water pipe is likely caused by the tree, meeting the statutory test for intervention. Given applicants' lack of timely preventative steps, repair costs are to be shared equally.

Court Disposition

Application to remove the tree refused. Sewer repair/maintenance compensation denied. Orders made for shared repair of the low brick wall.

Orders

  • ['The application to remove the tree is refused.' 'The claim for compensation for repair and maintenance of the sewer is refused.' 'Applicants are to obtain three quotes for repair of the low brick wall; the cheapest quote agreed upon is to be shared equally (50:50); applicants to carry out the work within 60 days;...