Stewart v Harmohinder Sharma [2008] NSWLEC 1099

Stewart v Harmohinder Sharma [2008] NSWLEC 1099

The Court found only very minor above-ground damage by the Dwarf Umbrella tree, which had already been pruned, and no evidence that any tree roots caused the below-ground garage wall damage or water entry. No compensation, tree removal, or boundary fence order was warranted. Because the Pittosporum tree may cause minor guttering damage in the near future and both parties were willing to prune it, pruning of the overhanging parts was ordered.

Jurisdiction
Australia
Judgment Date
12 February 2008
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application upheld in part.
Legal Topics
['compensation for Tree Damage' 'tree Pruning' 'removal of Trees' 'boundary Fence' 'costs']
['trees Disputes' 'property Law' 'neighbour Disputes'] ['compensation for Tree Damage' 'tree Pruning' 'removal of Trees' 'boundary Fence' 'costs']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Who is the owner of the property where the trees are growing?' "Have the trees caused damage, are they causing damage, or are they likely to cause damage to the Stewarts' property?" 'If the trees have caused damage, should the Stewarts receive compensation, and if so, how much?' 'Are the trees likely to cause injury, and if so, what should be done to avoid that?' 'Should the Court order installation of a boundary fence?' 'Should Dr Mittal receive compensation for the cost of reports and his time, and if so, how much?' 'Should Dr Mittal receive compensation for stress, anxiety and inconvenience?']

Ratio Decidendi

The Court found only very minor above-ground damage by the Dwarf Umbrella tree, which had already been pruned, and no evidence that any tree roots caused the below-ground garage wall damage or water entry. No compensation, tree removal, or boundary fence order was warranted. Because the Pittosporum tree may cause minor guttering damage in the near future and both parties were willing to prune it, pruning of the overhanging parts was ordered.

Court Disposition

Application upheld in part.

Orders

  • ['The application is upheld, in part;' 'The Stewarts shall prune off the above ground parts of the Pittosporum undulatum tree that overhang their property, by 31 March 2008, at their cost;' 'Mr Sharma shall permit access to his property for the purpose of the above pruning provided that access is on reasonable...