Zapata v Strata Plan 42882 [2008] NSWLEC 1218

Zapata v Strata Plan 42882 [2008] NSWLEC 1218

The Cocos palm was located against the brick wall and was causing displacement of the wall and a fence panel; because of its location and proximity to the wall, remedial action was not possible and it would continue to cause damage as it grew. The fear that the palm might fall on the house and injure persons was unfounded. The Cotoneaster was further from the brick wall and remedial action could be taken to avoid future damage, so removal of the Cotoneaster was not justified.

Jurisdiction
Australia
Judgment Date
26 June 2008
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Trees on Neighbouring Common Property / Ex Tempore Judgment
Outcome
Application to remove the Cocos palm allowed; application to remove the Cotoneaster refused.
Legal Topics
['removal of Trees' 'risk of Injury to Persons' 'damage to Property' 'root Barrier' 'future Damage Prevention']
['trees Disputes' 'property Law' 'land and Environment Court Proceedings'] ['removal of Trees' 'risk of Injury to Persons' 'damage to Property' 'root Barrier' 'future Damage Prevention']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Trees on Neighbouring Common Property / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Cocos palm had caused, was causing, or could in the near future cause damage to property or injury to persons.' "Whether the Cotoneaster should be removed because of actual or potential damage to the applicant's property." "What orders should be made to remedy or prevent damage caused by trees on the respondent's common property."]

Ratio Decidendi

The Cocos palm was located against the brick wall and was causing displacement of the wall and a fence panel; because of its location and proximity to the wall, remedial action was not possible and it would continue to cause damage as it grew. The fear that the palm might fall on the house and injure persons was unfounded. The Cotoneaster was further from the brick wall and remedial action could be taken to avoid future damage, so removal of the Cotoneaster was not justified.

Court Disposition

Application to remove the Cocos palm allowed; application to remove the Cotoneaster refused.

Orders

  • ['The Cocos palm is to be removed to ground level.' 'A section of root barrier is to be installed along the boundary line from the concrete retaining wall for a length of two fence panels. The root barrier is to be of rigid material, eg. plastic, and is to be installed to a depth of at least 700 mm and is to extend...