Hamilton v O'Brien [2009] NSWLEC 1340

Hamilton v O'Brien [2009] NSWLEC 1340

Damage to the applicant's fence from tree roots of trees 1, 2, 4, 5, 6, 7, 8, and 9 meets the statutory test for making orders under the Act. The presence and extent of above-ground roots prevents replacement of the fence without their removal. As sharing costs for a new fence is consistent with the state of the fence at purchase and offers were made to share removal costs, the court finds the respondents must remove relevant roots at their cost and both parties share the new fence cost equally.

Parties
Applicant: Diane Hamilton; Respondent: Stephen & Kerry O'Brien
Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Tree Dispute (property Damage) Application / Final Judgment
Outcome
Application upheld in part; orders made for removal of tree roots, removal and replacement of fence, and allocation of costs.
Legal Topics
Dividing Fence, Tree Root Damage, Neighbour Disputes
Environmental Law Property Law Dividing Fence Tree Root Damage Neighbour Disputes

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Parties

Diane Hamilton

Applicant

Stephen & Kerry O'Brien

Respondent

Procedural Posture

Tree Dispute (property Damage) Application / Final Judgment

Legal Issues

  1. 1 Whether trees on the respondent's property have caused or are likely to cause damage to the applicant's property or injury under the Trees (Disputes Between Neighbours) Act 2006.
  2. 2 Whether the damage or risk is sufficiently serious to warrant court intervention and what orders should be made, including cost allocation.

Ratio Decidendi

Damage to the applicant's fence from tree roots of trees 1, 2, 4, 5, 6, 7, 8, and 9 meets the statutory test for making orders under the Act. The presence and extent of above-ground roots prevents replacement of the fence without their removal. As sharing costs for a new fence is consistent with the state of the fence at purchase and offers were made to share removal costs, the court finds the respondents must remove relevant roots at their cost and both parties share the new fence cost equally.

Court Disposition

Application upheld in part; orders made for removal of tree roots, removal and replacement of fence, and allocation of costs.

Orders

  • Existing paling dividing fence to be removed; new standard metal dividing fence to be installed by 18 December 2009.
  • Each party to pay half the cost of fencing works to the contractor, except the O'Briens' share not to exceed half the quoted cost of $1,134.