Lyne v Lloyd [2017] NSWLEC 1111

Lyne v Lloyd [2017] NSWLEC 1111

The Fig tree on the respondent's property has caused actual damage and is likely to cause further damage to the applicant's property; s 10(2)(a) of the Trees Act is met for the Fig tree. The practical and cost-effective way to abate the current and prevent further damage is removal of the Fig tree, to be performed at the expense of the respondent. The Cypress tree has not caused damage and is not likely to do so in the near future; therefore, no order is made regarding it.

Parties
Applicant: Fraser Lyne; Respondent: Christine Lloyd
Jurisdiction
Australia
Judgment Date
02 March 2017
Procedural Posture
Tree Dispute Application / First Instance Judgment
Outcome
Ordered removal of the Fig tree within 120 days; no order made regarding the Cypress tree or for compensation/rectification of paving/drainage; applicant's claim for costs is not within commissioner’s jurisdiction.
Legal Topics
Damage to Property by Trees, Orders for Removal of Trees, Compensation Claims Under Trees (disputes Between Neighbours) Act 2006
Property Law Environmental Law Damage to Property by Trees Orders for Removal of Trees Compensation Claims Under Trees (disputes Between Neighbours) Act 2006

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Parties

Fraser Lyne

Applicant

Christine Lloyd

Respondent

Procedural Posture

Tree Dispute Application / First Instance Judgment

Legal Issues

  1. 1 Whether the Fig tree and Cypress on the respondent's property have caused, are causing, or are likely to cause damage to the applicant's property
  2. 2 Whether the applicant is entitled to removal of the trees and rectification or compensation for property damage

Ratio Decidendi

The Fig tree on the respondent's property has caused actual damage and is likely to cause further damage to the applicant's property; s 10(2)(a) of the Trees Act is met for the Fig tree. The practical and cost-effective way to abate the current and prevent further damage is removal of the Fig tree, to be performed at the expense of the respondent. The Cypress tree has not caused damage and is not likely to do so in the near future; therefore, no order is made regarding it.

Court Disposition

Ordered removal of the Fig tree within 120 days; no order made regarding the Cypress tree or for compensation/rectification of paving/drainage; applicant's claim for costs is not within commissioner’s jurisdiction.

Orders

  • Within 120 days, respondent to engage and pay for an AQF level 3 arborist to remove the Fig tree to ground level and grind stem and roots at least 400mm below ground.
  • Work to be performed in accordance with WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent.