Strata Plan 5144 v David and Gale Haworth and Richard Smith v David and Gale Haworth [2009] NSWLEC 1217

Strata Plan 5144 v David and Gale Haworth and Richard Smith v David and Gale Haworth [2009] NSWLEC 1217

The Camphor laurel, Paperbark and Peppercorn met the statutory tests because their dead wood, roots or overhang had caused or were likely to cause injury or damage, but the Bottlebrush, Maple, Pittosporum, Cypress trees and other trees were not shown to meet the tests. Compensation was refused because the evidence did not establish that the claimed damage was solely attributable to the trees, given factors including reactive clay soil, the proximity and construction of the villas, prior existence of at least the Camphor laurel and age or condition of sewer pipes. Future root damage justified orders for removal of the Paperbark, pruning of the Camphor laurel and installation of a root...

Jurisdiction
Australia
Judgment Date
26 June 2009
Procedural Posture
Applications Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment Following on Site Hearing
Outcome
Applications upheld in part.
Legal Topics
['removal and Pruning of Trees' 'tree Root Barrier' 'sewer Pipe and Paving Damage' 'compensation' 'overhanging Branches and Dead Wood']
['trees and Neighbour Disputes' 'property Damage' 'land and Environment'] ['removal and Pruning of Trees' 'tree Root Barrier' 'sewer Pipe and Paving Damage' 'compensation' 'overhanging Branches and Dead Wood']

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Procedural Posture

Applications Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment Following on Site Hearing

Legal Issues

  1. 1 ['Whether each tree satisfied one or more of the tests in s 10(2)(a) or s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether orders should be made for removal, pruning, installation of a root barrier, repair of damage or compensation.' 'Whether the respondents should pay for the ordered works.']

Ratio Decidendi

The Camphor laurel, Paperbark and Peppercorn met the statutory tests because their dead wood, roots or overhang had caused or were likely to cause injury or damage, but the Bottlebrush, Maple, Pittosporum, Cypress trees and other trees were not shown to meet the tests. Compensation was refused because the evidence did not establish that the claimed damage was solely attributable to the trees, given factors including reactive clay soil, the proximity and construction of the villas, prior existence of at least the Camphor laurel and age or condition of sewer pipes. Future root damage justified orders for removal of the Paperbark, pruning of the Camphor laurel and installation of a root...

Court Disposition

Applications upheld in part.

Orders

  • ["These Orders apply to the respondent's property at 55 Lang Street, Burwood." 'The Paperbark tree shall be removed.' 'The Camphor laurel tree shall have the first branch which arises at about 6 m above ground on the south-western trunk pruned off adjacent to the trunk, and all dead wood larger than 20 mm diameter...