Barbour & anor v Stillianesis [2010] NSWLEC 1120

Barbour & anor v Stillianesis [2010] NSWLEC 1120

The Rhus tree had not caused, was not causing, and was not likely in the near future to cause damage or injury, so the Court had no jurisdiction to make orders concerning it. The Peppercorn tree was likely to have caused the separation between the path and the house and may have caused the crack in the step,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 May 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment
Outcome
Application to remove the trees refused; limited orders made requiring the respondent to sever the damaging root and organise and pay for specified repairs to the path gap and step.
Legal Topics
['damage to Property Caused by Tree Roots' 'risk of Injury From Pathway' 'tree Removal' 'repair of Pathway' 'leaf Drop and Urban Tree Maintenance']
['trees (neighbours)' 'property Law' 'land and Environment Court Proceedings'] ['damage to Property Caused by Tree Roots' 'risk of Injury From Pathway' 'tree Removal' 'repair of Pathway' 'leaf Drop and Urban Tree Maintenance']

Source-derived case record

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment

Legal Issues

  1. 1 ["Whether the Peppercorn tree caused, is causing, or is likely in the near future to cause damage to the applicants' property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the Rhus tree caused, is causing, or is likely in the near future to cause damage to the applicants' property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether removal of the trees or other orders were warranted under s 9 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether leaf drop, branch contact, lifting of the fence or canopy, and cracking of concrete justified intervention by the Court.']

Ratio Decidendi

The Rhus tree had not caused, was not causing, and was not likely in the near future to cause damage or injury, so the Court had no jurisdiction to make orders concerning it. The Peppercorn tree was likely to have caused the separation between the path and the house and may have caused the crack in the step, enlivening jurisdiction under s 10(2), but removal of the tree was disproportionate to the minor damage. Limited root pruning and repair of the pathway gap and step were appropriate to prevent further damage, while other alleged matters did not justify orders.

Court Disposition

Application to remove the trees refused; limited orders made requiring the respondent to sever the damaging root and organise and pay for specified repairs to the path gap and step.

Orders

  • ['The application to remove the trees is refused.' 'The respondent is to locate and sever the root seen to be causing the damage to the path. Root pruning is to be limited to that particular root.' "The respondent is to organise and pay for the infilling of the gap between the path and the side of the applicants'...