Berridale Building & Joinery P/L v Zhou Property Management P/L [2022] NSWLEC 1641

Berridale Building & Joinery P/L v Zhou Property Management P/L [2022] NSWLEC 1641

The roots of the respondents' tree have caused minor damage and are likely to cause moderate to major damage to the applicant's property in the near future. A root barrier is not viable due to the tree's position, so removal is necessary to prevent further damage, satisfying s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006.

Parties
Applicant: Berridale Building & Joinery P/L; First Respondent: Zhou Property Management P/L; Second Respondent: Australia Wanjiang P/L
Jurisdiction
Australia
Judgment Date
18 November 2022
Procedural Posture
Class 2 / Final Orders
Outcome
Application granted; orders for removal of the tree at respondent's expense.
Legal Topics
Tree Disputes, Damage to Property, Trees (disputes Between Neighbours) Act 2006, Remedies for Tree Damage
Environmental Law Property Law Tree Disputes Damage to Property Trees (disputes Between Neighbours) Act 2006 Remedies for Tree Damage

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Parties

Berridale Building & Joinery P/L

Applicant

Zhou Property Management P/L

First Respondent

Australia Wanjiang P/L

Second Respondent

Procedural Posture

Class 2 / Final Orders

Legal Issues

  1. 1 Whether tree roots from respondents' tree caused or are likely to cause damage to applicant's property
  2. 2 Whether discretionary factors warrant orders for removal versus alternative remedies (root barrier)
  3. 3 Whether leaves and debris from the tree constitute 'damage' under the Act

Ratio Decidendi

The roots of the respondents' tree have caused minor damage and are likely to cause moderate to major damage to the applicant's property in the near future. A root barrier is not viable due to the tree's position, so removal is necessary to prevent further damage, satisfying s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006.

Court Disposition

Application granted; orders for removal of the tree at respondent's expense.

Orders

  • Within 120 days, respondents to employ AQF level 3 arborists with appropriate insurances to remove Plane tree in south-west corner to near ground level and poison stump; remove refuse from site.
  • Tree removal works to be completed in accordance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.