Gillard v Best [2007] NSWLEC 606

Procedural Posture

Neighbour Application Concerning a Tree Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing

Legal Issues

1. 1 ["Whether the Liquidambar tree caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person." 'Whether the damage or risk was sufficiently serious to warrant intervention by the Court.' 'Whether the tree should be removed or root pruning ordered.' 'Whether the respondent should pay compensation for driveway damage and the tree assessment report.']

Ratio Decidendi

The exposed roots of the respondent's Liquidambar tree extended under the applicant's concrete driveway and corresponded with raising and cracking of the slab, so the tree had caused damage and intervention was appropriate. However, because the tree appeared stable and healthy and had survived earlier root pruning, removal was not warranted. Ongoing root pruning and removal of specified roots before driveway replacement were appropriate, with partial compensation only because the driveway was inadequately constructed, had been subjected to heavy vehicle use, and was more than 25 years old.

Court Disposition

Application allowed in part; tree removal refused, root pruning and partial compensation ordered.

Orders

• ['Mr Best is to pay Mrs Gillard the sum of $1,139.50 within 30 days of Mrs Gillard giving Mr Best a copy of the receipted account for full payment of the completed concrete driveway.' "Roots of the Liquidambar tree should be pruned at intervals of not more than five years on Mr Best's side of the common boundary to...