Body v Bracks; Smith v Bracks [2021] NSWLEC 1614

Body v Bracks; Smith v Bracks [2021] NSWLEC 1614

In proceedings 2021/109436, the Court found that the tree caused damage to the applicant’s property, that further damage was likely, and that removal was the only practical remedy; however, most compensation claims were time-barred per the Limitation Act 1969. In proceedings 2021/109559, the Court found pruning and deadwood removal would remedy damage and prevent further injury, and ordered compensation based on a quoted repair cost.

Parties
Applicant: David John Body; Respondent: Courtney Bracks; First Applicant: Brett Smith; Second Applicant: Coleen Lamarre
Jurisdiction
Australia
Judgment Date
19 October 2021
Procedural Posture
Trees (disputes Between Neighbours) Class 2 / Principal Judgment
Outcome
Applications granted to the extent of the orders below.
Legal Topics
Tree Disputes, Damage to Property, Compensation, Statute of Limitations, Tree Removal, Pruning Orders, Expert Evidence
Property Law Neighbours Law Environmental Law Tree Disputes Damage to Property Compensation Statute of Limitations Tree Removal +2 more

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Parties

David John Body

Applicant

Courtney Bracks

Respondent

Brett Smith

First Applicant

Coleen Lamarre

Second Applicant

Procedural Posture

Trees (disputes Between Neighbours) Class 2 / Principal Judgment

Legal Issues

  1. 1 Whether tree removal is required based on damage to neighbouring properties
  2. 2 Whether compensation should be ordered for property damage caused by the tree
  3. 3 Whether causation between tree and damage is established

Ratio Decidendi

In proceedings 2021/109436, the Court found that the tree caused damage to the applicant’s property, that further damage was likely, and that removal was the only practical remedy; however, most compensation claims were time-barred per the Limitation Act 1969. In proceedings 2021/109559, the Court found pruning and deadwood removal would remedy damage and prevent further injury, and ordered compensation based on a quoted repair cost.

Court Disposition

Applications granted to the extent of the orders below.

Orders

  • In proceedings 2021/109436: respondent to engage and pay for removal of the eucalypt tree to no more than 500 mm above ground within 60 days; works to comply with Safe Work Australia Guide; respondent to notify applicant; applicant to provide access; respondent to plant a native tree reaching at least 6 m height...
  • In proceedings 2021/109559: respondent to prune tree to remove branch impacting northern dwelling and all deadwood >40 mm diameter within 90 days if tree is not already removed; works to comply with AS 4373-2007 and Safe Work Australia Guide; respondent to notify applicants; applicants to provide access;...