Llavero v Shearer [2011] NSWLEC 1053

Llavero v Shearer [2011] NSWLEC 1053

The tree is causing damage to the shed but is not the principal cause of the dysfunctional gutters, as that results from insufficient maintenance. As future growth will increase encroachment and potential damage, and necessary pruning would destroy the tree, the appropriate course is to remove it to prevent further unrestrainable damage. Compensation for gutter replacement is not warranted.

Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Class 2 / Principal Judgment
Outcome
Application to remove the tree upheld; application for compensation for repairs to the shed dismissed.
Legal Topics
['trees (disputes Between Neighbours)' 'damage to Property' 'compensation']
['environment and Planning Law'] ['trees (disputes Between Neighbours)' 'damage to Property' 'compensation']

Case Brief

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Procedural Posture

Class 2 / Principal Judgment

Legal Issues

  1. 1 ['Whether the Lilly Pilly tree should be removed under the Trees (Disputes Between Neighbours) Act 2006' 'Whether the applicants are entitled to compensation for repairs to their shed due to alleged damage caused by the tree']

Ratio Decidendi

The tree is causing damage to the shed but is not the principal cause of the dysfunctional gutters, as that results from insufficient maintenance. As future growth will increase encroachment and potential damage, and necessary pruning would destroy the tree, the appropriate course is to remove it to prevent further unrestrainable damage. Compensation for gutter replacement is not warranted.

Court Disposition

Application to remove the tree upheld; application for compensation for repairs to the shed dismissed.

Orders

  • ['The application for compensation for repairs to the shed is dismissed.' 'The application to remove the tree is upheld.' 'The respondents are to engage and pay for an AQF level 3 arborist to remove the tree to 10cm below the bottom of the fence and to have the stump poisoned.' 'This work is to be carried out in...