Lapidot v Shaw [2009] NSWLEC 1051

Lapidot v Shaw [2009] NSWLEC 1051

The structural evidence established that the trees were not the principal cause of damage to the brick wall—the primary cause was expansion and contraction of steel brackets attached to the pool bondbeam. Only the Sweet Viburnum tree was a secondary cause of damage at the eastern end. The wall was found dangerous...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 February 2009
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment
Outcome
Application upheld in part; removal of wall ordered at applicants' cost; new timber fence to be constructed by respondents at their cost.
Legal Topics
['tree Disputes' 'property Damage' 'boundary Fencing']
['property Law' 'environmental Law'] ['tree Disputes' 'property Damage' 'boundary Fencing']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment

Legal Issues

  1. 1 ["Whether trees on the respondent's property caused damage to the applicant's property as required by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006" 'Responsibility for repair/removal of damaged wall and construction of new dividing fence']

Ratio Decidendi

The structural evidence established that the trees were not the principal cause of damage to the brick wall—the primary cause was expansion and contraction of steel brackets attached to the pool bondbeam. Only the Sweet Viburnum tree was a secondary cause of damage at the eastern end. The wall was found dangerous and should be removed at the Lapidots’ cost. There was no basis to order tree removal. The Shaws were ordered to construct a timber fence at their expense.

Court Disposition

Application upheld in part; removal of wall ordered at applicants' cost; new timber fence to be constructed by respondents at their cost.

Orders

  • ['Mr and Mrs Lapidot to remove existing brick wall and tidy ground, leaving the footing generally intact, at their cost.' 'Removal of the brick wall to be completed by 30 April 2009.' 'Mr and Mrs Shaw to allow removal of bricks from the wall via their property on reasonable notice and at reasonable times, with right...