Knox v Love (No 3) [2012] NSWLEC 1158

Knox v Love (No 3) [2012] NSWLEC 1158

The discovery of numerous additional Oak roots in contact with two sewer pipes was a changed circumstance sufficient to found jurisdiction. The Oak roots had contributed to damage to the sewer pipes and their removal was necessary for efficient and inexpensive sewer repairs; severing the required roots would seriously affect the Oak's health and create a real risk of root plate failure, while alternative repair methods were unreasonably expensive or not a long-term solution. The Oak therefore had to be removed at the respondents' cost, with the applicants to remove roots on their own land for the sewer works. Proposed Orders 2 and 3 were dismissed because the sewer had been reinstated and...

Jurisdiction
Australia
Judgment Date
09 May 2012
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Onsite Hearing and Resumed Hearing
Outcome
Appeal upheld in part; proposed Orders 2 and 3 dismissed.
Legal Topics
['removal of Oak Tree' 'damage to Retaining Wall' 'obstruction of Sewer Pipes' 'compensation' 'jurisdiction Under S 13 a of the Dividing Fences Act 1991']
['trees and Neighbour Disputes' 'dividing Fences' 'land and Environment Court Jurisdiction'] ['removal of Oak Tree' 'damage to Retaining Wall' 'obstruction of Sewer Pipes' 'compensation' 'jurisdiction Under S 13 a of the Dividing Fences Act 1991']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Onsite Hearing and Resumed Hearing

Legal Issues

  1. 1 ["Whether changed circumstances since Knox v Love (No2) [2011] NSWLEC 1277 enlivened the Court's jurisdiction to determine the further application for removal of the Oak tree." "Whether the Oak tree roots had caused or contributed to damage to the applicants' sewer pipes and whether removal of the tree was necessary to allow sewer repair works." 'Whether alternative sewer repair methods avoided the need to sever roots or remove the tree.' "Whether the Court had jurisdiction under s 13A of the Dividing Fences Act 1991 to make orders about the respondents' stormwater tank, soil build-up, fence and retaining wall."]

Ratio Decidendi

The discovery of numerous additional Oak roots in contact with two sewer pipes was a changed circumstance sufficient to found jurisdiction. The Oak roots had contributed to damage to the sewer pipes and their removal was necessary for efficient and inexpensive sewer repairs; severing the required roots would seriously affect the Oak's health and create a real risk of root plate failure, while alternative repair methods were unreasonably expensive or not a long-term solution. The Oak therefore had to be removed at the respondents' cost, with the applicants to remove roots on their own land for the sewer works. Proposed Orders 2 and 3 were dismissed because the sewer had been reinstated and...

Court Disposition

Appeal upheld in part; proposed Orders 2 and 3 dismissed.

Orders

  • ['The appeal is upheld in part.' 'The respondents are to engage and pay for a qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Oak tree to ground level within 30 days of the date of these Orders. The works are to be carried out in accordance with AS 4373-2007 Pruning of Amenity...