Achelles G & C v Eventful Productions Pty Ltd [2011] NSWLEC 1090

Achelles G & C v Eventful Productions Pty Ltd [2011] NSWLEC 1090

The Court was satisfied that roots from trees T1 to T10 caused pavement damage and that roots from trees T1 to T7 were likely in the near future to damage the applicants' termite protection system, enlivening jurisdiction under s 10(2). The evidence did not establish that the respondent's trees caused the minor bow in the old retaining wall, and no satisfactory reason was given for removing trees T11 to T16. Considering the s 12 matters, removal of trees T1 to T10 at the respondent's cost was warranted, but the applicants should bear part of the paving repair cost because they had not previously communicated the pavement damage and associated injury risk to the respondent.

Jurisdiction
Australia
Judgment Date
19 April 2011
Procedural Posture
Class 2 Application Pursuant to Part 2 S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application to remove trees upheld in part. Compensation for repair of pavement ordered.
Legal Topics
['removal of Trees' 'damage to Property' 'risk of Injury to Persons' 'compensation for Repair of Pavement' 'tree Roots' 'termite Protection System']
['land and Environment' 'trees Disputes Between Neighbours'] ['removal of Trees' 'damage to Property' 'risk of Injury to Persons' 'compensation for Repair of Pavement' 'tree Roots' 'termite Protection System']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether roots from the respondent's Golden Cypress trees caused damage to the applicants' brick paving or were likely in the near future to cause damage to the applicants' property." 'Whether the uplifted and undulated pavers created a likely risk of injury to any person.' 'Whether trees T1 to T10 should be removed and whether the respondent should contribute to repair costs.' 'Whether trees T11 to T16 should be removed.']

Ratio Decidendi

The Court was satisfied that roots from trees T1 to T10 caused pavement damage and that roots from trees T1 to T7 were likely in the near future to damage the applicants' termite protection system, enlivening jurisdiction under s 10(2). The evidence did not establish that the respondent's trees caused the minor bow in the old retaining wall, and no satisfactory reason was given for removing trees T11 to T16. Considering the s 12 matters, removal of trees T1 to T10 at the respondent's cost was warranted, but the applicants should bear part of the paving repair cost because they had not previously communicated the pavement damage and associated injury risk to the respondent.

Court Disposition

Application to remove trees upheld in part. Compensation for repair of pavement ordered.

Orders

  • ['The application to remove the trees is upheld in part.' 'The application to remove trees T11 to T16 inclusive is dismissed.' "Trees T1 - T10 inclusive as identified on the applicants submission, being those Golden Cypress trees on the respondent's land in a single row extending from the south to the north along...