Storey & anor v Button [2007] NSWLEC 743

Storey & anor v Button [2007] NSWLEC 743

Because the tree had previously damaged the applicants' property and roots from the tree were likely still present on their property, the statutory basis for intervention was established. The evidence showed the 2003 root pruning had not significantly harmed the tree and that further root pruning and trenching would be appropriate preventative measures, but the tree's apparent health and the circumstances did not justify ordering its removal.

Jurisdiction
Australia
Judgment Date
24 October 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Neighbouring Tree / Ex Tempore Judgment; Formal Orders to Be Made Pursuant to S 9 of the Trees (disputes Between Neighbours) Act 2006
Outcome
Application allowed in part; preventative root pruning and trenching orders indicated, but tree removal refused.
Legal Topics
['neighbour Tree Dispute' 'tree Roots Causing Property Damage' 'preventative Root Pruning and Trenching Orders' 'trees (disputes Between Neighbours) Act 2006']
['trees (neighbours)' 'property Law' 'land and Environment Court Proceedings'] ['neighbour Tree Dispute' 'tree Roots Causing Property Damage' 'preventative Root Pruning and Trenching Orders' 'trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Neighbouring Tree / Ex Tempore Judgment; Formal Orders to Be Made Pursuant to S 9 of the Trees (disputes Between Neighbours) Act 2006

Legal Issues

  1. 1 ["Whether the Liquidambar tree on the respondent's property had damaged the applicants' property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." "Whether further preventative measures should be ordered to address roots from the tree extending onto the applicants' property." 'Whether removal of the tree should be ordered.' 'What timeframe and cost contribution should apply to any ordered works.']

Ratio Decidendi

Because the tree had previously damaged the applicants' property and roots from the tree were likely still present on their property, the statutory basis for intervention was established. The evidence showed the 2003 root pruning had not significantly harmed the tree and that further root pruning and trenching would be appropriate preventative measures, but the tree's apparent health and the circumstances did not justify ordering its removal.

Court Disposition

Application allowed in part; preventative root pruning and trenching orders indicated, but tree removal refused.

Orders

  • ['Formal orders are to be made pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006, but are not reproduced in the judgment.' "Mr Button is to undertake further root pruning works to sever any roots presently on the Storeys' property." "Mr Button is to dig a trench to a depth of 900 mm on his property...