Harris v Liu [2022] NSWLEC 1466

Harris v Liu [2022] NSWLEC 1466

The Pt 2A application failed because the trees were irregularly spaced, of different species and varying heights, did not appear as a hedge, and were not planted with an intention to form a hedge. The Pt 2 application succeeded only in part: Tree 1 was to be removed because its roots caused cracking to the Applicants' concrete path and further damage was likely, while Tree 2 and Tree 3 required pruning to reduce likely branch failures. Compensation was refused because the Court could not be satisfied which tree's roots entered the stormwater pipe and the Respondents had not knowingly caused or continued a nuisance.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Class 2 Tree Dispute Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing and Further Telephone Hearing
Outcome
Pt 2A application refused; Pt 2 application granted in part; compensation refused.
Legal Topics
['damage to Property From Neighbouring Trees' 'risk of Injury From Tree Branches and Toxic Properties' 'obstruction of Sunlight by Alleged Hedge' 'compensation for Stormwater Pipe Repair' 'tree Removal and Pruning Orders']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court Jurisdiction'] ['damage to Property From Neighbouring Trees' 'risk of Injury From Tree Branches and Toxic Properties' 'obstruction of Sunlight by Alleged Hedge' 'compensation for Stormwater Pipe Repair' 'tree Removal and Pruning Orders']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing and Further Telephone Hearing

Legal Issues

  1. 1 ['Whether the Applicants made a reasonable effort to reach agreement with the Respondents.' "Whether Tree 1, Tree 2 or Tree 3 caused, is causing, or is likely in the near future to cause damage to the Applicants' property, or is likely to cause injury to a person under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006." "Whether compensation should be ordered for the cost of repairing the Applicants' stormwater pipe." 'Whether Trees 1-3 and nearby shrubs were planted so as to form a hedge so that Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.']

Ratio Decidendi

The Pt 2A application failed because the trees were irregularly spaced, of different species and varying heights, did not appear as a hedge, and were not planted with an intention to form a hedge. The Pt 2 application succeeded only in part: Tree 1 was to be removed because its roots caused cracking to the Applicants' concrete path and further damage was likely, while Tree 2 and Tree 3 required pruning to reduce likely branch failures. Compensation was refused because the Court could not be satisfied which tree's roots entered the stormwater pipe and the Respondents had not knowingly caused or continued a nuisance.

Court Disposition

Pt 2A application refused; Pt 2 application granted in part; compensation refused.

Orders

  • ['The Pt 2A application is refused.' 'The Pt 2 application is granted to the extent of the following orders.' 'The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out specified works within 30 days of the date of the orders.' 'Tree 1...