Braun v Basser [2021] NSWLEC 1510

Braun v Basser [2021] NSWLEC 1510

The Court was not satisfied that the Cook pine caused damage to the applicant's sewer pipe, so no compensation for plumbing works was warranted. The tree had caused minor damage to the common boundary fence and, because recent cutting of large structural roots increased the likelihood of root plate failure, it was likely in the near future to cause damage to the applicant's property or injury. Removal was the only practical risk mitigation. Because the applicant's plumbing works caused or materially contributed to the need for removal and alternatives to cutting roots were not shown to have been explored, the applicant was ordered to reimburse 75% of the respondent's tree removal invoice,...

Jurisdiction
Australia
Judgment Date
31 August 2021
Procedural Posture
Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing; Orders Made
Outcome
Application granted to the extent of the orders; tree removal and fence repair ordered; compensation refused.
Legal Topics
['application for Tree Removal' 'compensation for Alleged Sewer Pipe Damage' 'boundary Fence Damage' 'risk of Tree Failure After Root Severance' 'apportionment of Tree Removal Costs']
['trees Disputes Between Neighbours' 'land and Environment Court Class 2 Jurisdiction'] ['application for Tree Removal' 'compensation for Alleged Sewer Pipe Damage' 'boundary Fence Damage' 'risk of Tree Failure After Root Severance' 'apportionment of Tree Removal Costs']

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Procedural Posture

Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing; Orders Made

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the tree owner.' "Whether the respondent's Cook pine caused damage to the applicant's sewer pipe." "Whether the respondent's Cook pine caused damage to the common boundary fence." "Whether the tree was likely in the near future to cause damage to the applicant's property or injury to any person after structural roots were severed." 'Whether compensation should be ordered for plumbing works and related claimed loss.' 'How the cost of removing the tree should be apportioned between the parties.']

Ratio Decidendi

The Court was not satisfied that the Cook pine caused damage to the applicant's sewer pipe, so no compensation for plumbing works was warranted. The tree had caused minor damage to the common boundary fence and, because recent cutting of large structural roots increased the likelihood of root plate failure, it was likely in the near future to cause damage to the applicant's property or injury. Removal was the only practical risk mitigation. Because the applicant's plumbing works caused or materially contributed to the need for removal and alternatives to cutting roots were not shown to have been explored, the applicant was ordered to reimburse 75% of the respondent's tree removal invoice,...

Court Disposition

Application granted to the extent of the orders; tree removal and fence repair ordered; compensation refused.

Orders

  • ['The application is granted to the extent of the orders below.' "Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the Cook pine in the rear garden of her property and grind out its stump to a...