Low v Muir & Anor [2012] NSWLEC 1092

Low v Muir & Anor [2012] NSWLEC 1092

Although the evidence did not identify which individual tree roots had caused the past sewer damage or general concrete cracking, the Court was satisfied that any of the seven trees could cause damage in the near future because a section of terracotta sewer line remained on Ms Low's property and all seven trees could have roots in its proximity. The displacement of the boundary fence by stem growth of T1 and T5 established tree damage to the fence. The agreed orders for removal of T2, T5, T6 and T7 and replacement of the boundary fence were appropriate to prevent further damage to property.

Jurisdiction
Australia
Judgment Date
12 April 2012
Procedural Posture
Class 2 Tree Dispute Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Consent Orders Following Onsite Hearing
Outcome
Consent orders made for removal of four trees and replacement of the boundary fence, with fencing costs shared equally.
Legal Topics
['damage to Property' 'tree Roots Damaging Sewer Pipes and Concrete Paving' 'removal of Trees' 'replacement of Boundary Fence' 'consent Orders']
['land and Environment' 'trees Disputes Between Neighbours' 'dividing Fences'] ['damage to Property' 'tree Roots Damaging Sewer Pipes and Concrete Paving' 'removal of Trees' 'replacement of Boundary Fence' 'consent Orders']

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Procedural Posture

Class 2 Tree Dispute Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Consent Orders Following Onsite Hearing

Legal Issues

  1. 1 ["Whether trees on the respondents' land had 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 the proposed consent orders for removal of trees were appropriate to remedy, restrain or prevent damage to property.' 'Whether the Court could make orders regarding the boundary fence under s 13A of the Dividing Fences Act 1991 No 72 because the fence had been damaged by trees.']

Ratio Decidendi

Although the evidence did not identify which individual tree roots had caused the past sewer damage or general concrete cracking, the Court was satisfied that any of the seven trees could cause damage in the near future because a section of terracotta sewer line remained on Ms Low's property and all seven trees could have roots in its proximity. The displacement of the boundary fence by stem growth of T1 and T5 established tree damage to the fence. The agreed orders for removal of T2, T5, T6 and T7 and replacement of the boundary fence were appropriate to prevent further damage to property.

Court Disposition

Consent orders made for removal of four trees and replacement of the boundary fence, with fencing costs shared equally.

Orders

  • ['The respondents are to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance, to remove trees T2 (Hackberry), T5 (Fig), T6 (Hackberry) and T7 (Cassava) to no more than 300mm above ground level. If stumps remain they are to be poisoned immediately.' 'The works in (1)...