Sczepanski v O’Brien [2010] NSWLEC 1231

Sczepanski v O’Brien [2010] NSWLEC 1231

The Court was satisfied that the Willow Gum's roots had caused damage to Mr Sczepanski's retaining wall, enlivening jurisdiction under s 10(2). The wall was not shown to have been inadequately constructed, and the tree and its roots were the sole contributor to the wall's failure. Because the wall was not in imminent danger of collapse, removal of the tree was appropriate to prevent further damage, but reinstatement of the wall was not necessary. Deposition of leaves, twigs and detritus did not justify orders.

Jurisdiction
Australia
Judgment Date
19 August 2010
Procedural Posture
Application Pursuant to Part 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Willow Gum / Ex Tempore Judgment After on Site Hearing
Outcome
Application allowed in part; orders made for removal and poisoning of the Willow Gum at Mr O'Brien's cost, but no order for payment of retaining wall reinstatement costs.
Legal Topics
['neighbouring Trees' 'property Damage' 'retaining Wall Damage' 'tree Removal' 'recusal']
['trees Disputes' 'land and Environment Court Proceedings'] ['neighbouring Trees' 'property Damage' 'retaining Wall Damage' 'tree Removal' 'recusal']

Case Brief

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Procedural Posture

Application Pursuant to Part 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Willow Gum / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether Acting Commissioner Hewett should recuse himself from the proceedings.' "Whether the Willow Gum caused damage to Mr Sczepanski's retaining wall so as to enliven the Court's jurisdiction under s 10(2) of the Trees Act." 'Whether the Court should order removal of the tree and payment for reinstatement of the retaining wall.' 'Whether deposition of leaves, small twigs and other detritus from the tree justified orders under the Trees Act.']

Ratio Decidendi

The Court was satisfied that the Willow Gum's roots had caused damage to Mr Sczepanski's retaining wall, enlivening jurisdiction under s 10(2). The wall was not shown to have been inadequately constructed, and the tree and its roots were the sole contributor to the wall's failure. Because the wall was not in imminent danger of collapse, removal of the tree was appropriate to prevent further damage, but reinstatement of the wall was not necessary. Deposition of leaves, twigs and detritus did not justify orders.

Court Disposition

Application allowed in part; orders made for removal and poisoning of the Willow Gum at Mr O'Brien's cost, but no order for payment of retaining wall reinstatement costs.

Orders

  • ["The Willow Gum in the south-eastern corner of Mr O'Brien's property is to be removed at a point 600 mm above ground level, but the roots are not required to be removed nor the stump ground." 'The remaining stump is to be poisoned to ensure that there can be no residual or epicormic growth.' 'The tree is to be...