Lee & anor v Waugh [2012] NSWLEC 1341

Lee & anor v Waugh [2012] NSWLEC 1341

The Norfolk Island Pine was highly likely to have structural roots under the wall footing and had contributed to damage to the applicants' eastern boundary wall, satisfying s 10(2) and engaging jurisdiction under s 9. Although the age, construction and location of the wall also contributed to its condition, the wall needed rebuilding. Retaining the tree would require more expensive pier and beam footings and risk cutting important structural roots, with potential future damage and risk if the tree failed. Removal, with measures to retain soil stability, was therefore appropriate. Debris and asserted whole-tree failure did not independently satisfy s 10(2).

Jurisdiction
Australia
Judgment Date
12 December 2012
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application is upheld in part; removal ordered; compensation ordered.
Legal Topics
['damage to Masonry Boundary Wall by Tree Roots' 'tree Removal' 'tree Debris and Maintenance' 'risk of Injury From Tree Failure' 'contribution to Rebuilding Costs']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment'] ['damage to Masonry Boundary Wall by Tree Roots' 'tree Removal' 'tree Debris and Maintenance' 'risk of Injury From Tree Failure' 'contribution to Rebuilding Costs']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the Norfolk Island Pine caused, is causing, or is likely in the near future to cause damage to the applicants' property or injury to any person within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether orders should be made for removal of the Norfolk Island Pine and reconstruction of the eastern boundary wall at the respondent's expense." 'Whether falling debris from the tree justified orders for intervention with or removal of the tree.' 'What contribution the respondent should make to the cost of rebuilding the wall.']

Ratio Decidendi

The Norfolk Island Pine was highly likely to have structural roots under the wall footing and had contributed to damage to the applicants' eastern boundary wall, satisfying s 10(2) and engaging jurisdiction under s 9. Although the age, construction and location of the wall also contributed to its condition, the wall needed rebuilding. Retaining the tree would require more expensive pier and beam footings and risk cutting important structural roots, with potential future damage and risk if the tree failed. Removal, with measures to retain soil stability, was therefore appropriate. Debris and asserted whole-tree failure did not independently satisfy s 10(2).

Court Disposition

The application is upheld in part; removal ordered; compensation ordered.

Orders

  • ['The application is upheld in part.' 'Within 90 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the tree and grind the roots in accordance with the details in paragraph [36] of this judgment.' 'All tree work must be carried out in accordance with the...