Low v Muir & anor [2017] NSWLEC 1386

Low v Muir & anor [2017] NSWLEC 1386

The roots of the Paperbark, and likely the intertwined Fiddle-leaf Fig, had lifted a 3-4m2 section of concrete paving and the Paperbark was a cause of damage to the fence, satisfying s 10(2)(a) and engaging the Court's jurisdiction to order removal of those trees, associated stump and root works, concrete replacement and fence works. The sewer claim was dismissed because the material did not prove that the Paperbark caused damage to the pipes. The small self-sown trees did not meet the jurisdictional test, so the Court could not order their removal.

Jurisdiction
Australia
Judgment Date
19 July 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 and S 13 a of the Dividing Fences Act 1991 / Principal Judgment and Final Orders
Outcome
Orders made for removal of the Paperbark and Fiddle-leaf Fig, stump grinding and poisoning, removal and replacement of a 3-4m2 section of concrete, removal and replacement of the dividing fence with the applicant reimbursing 50% of the agreed fence cost; sewer replacement claim dismissed and no order made for small...
Legal Topics
['tree Caused Property Damage' 'removal of Trees' 'concrete Paving Damage' 'sewer Damage Claim' 'dividing Fence Replacement' 'jurisdictional Test Under S 10(2)(a)']
['trees Disputes Between Neighbours' 'dividing Fences' 'property Law'] ['tree Caused Property Damage' 'removal of Trees' 'concrete Paving Damage' 'sewer Damage Claim' 'dividing Fence Replacement' 'jurisdictional Test Under S 10(2)(a)']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 and S 13 a of the Dividing Fences Act 1991 / Principal Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the Paperbark, Fiddle-leaf Fig and other trees caused, were causing, or were likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made for removal of the Paperbark, Fiddle-leaf Fig and small self-sown trees.' "Whether the respondents should remove and replace damaged concrete paving on the applicant's property." 'Whether the applicant proved that tree roots damaged the earthenware sewer pipes and required replacement of the sewer line.' 'Whether orders should be made concerning removal and replacement of the dilapidated dividing fence.' 'Whether the applicant could recover the application filing fee in this proceeding before a Commissioner.']

Ratio Decidendi

The roots of the Paperbark, and likely the intertwined Fiddle-leaf Fig, had lifted a 3-4m2 section of concrete paving and the Paperbark was a cause of damage to the fence, satisfying s 10(2)(a) and engaging the Court's jurisdiction to order removal of those trees, associated stump and root works, concrete replacement and fence works. The sewer claim was dismissed because the material did not prove that the Paperbark caused damage to the pipes. The small self-sown trees did not meet the jurisdictional test, so the Court could not order their removal.

Court Disposition

Orders made for removal of the Paperbark and Fiddle-leaf Fig, stump grinding and poisoning, removal and replacement of a 3-4m2 section of concrete, removal and replacement of the dividing fence with the applicant reimbursing 50% of the agreed fence cost; sewer replacement claim dismissed and no order made for small...

Orders

  • ['Within 90 days of the date of these orders the respondents are to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove the Paperbark and Fiddle-leaf Fig to ground level and to grind the stumps to a depth of at least 150mm. Any residual roots are to be poisoned.'...