Lister v Fraser & anor [2017] NSWLEC 1707

Lister v Fraser & anor [2017] NSWLEC 1707

The evidence did not sufficiently establish on the balance of probabilities that the respondents' tree caused the substantive damage to the garage; speculative and insufficiently substantiated expert reports failed to link roots to major cracks or demonstrate exclusivity of tree as cause. Minor cracking to the footing was likely contributed to by a tree root but did not justify removal or compensation. Dead wood in the tree posed potential risk, which was sufficient for a limited order for dead wood removal.

Jurisdiction
Australia
Judgment Date
08 December 2017
Procedural Posture
Class 2 Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment and Orders
Outcome
Application to remove tree and for compensation dismissed; limited order for removal of dead wood from tree only.
Legal Topics
['tree Disputes' 'damage to Property by Trees' 'jurisdiction Under Trees Act' 'remedies for Structural Damage' 'compensation for Damage']
['environmental Law' 'property Law'] ['tree Disputes' 'damage to Property by Trees' 'jurisdiction Under Trees Act' 'remedies for Structural Damage' 'compensation for Damage']

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Procedural Posture

Class 2 Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment and Orders

Legal Issues

  1. 1 ["Whether the respondents' tree caused or is likely to cause damage to the applicant's garage under s 10(2)(a) Trees (Disputes Between Neighbours) Act 2006" 'Whether the applicant is entitled to removal of the tree and/or compensation' 'Whether tree presents a risk of injury or property damage under s 10(2)(b)']

Ratio Decidendi

The evidence did not sufficiently establish on the balance of probabilities that the respondents' tree caused the substantive damage to the garage; speculative and insufficiently substantiated expert reports failed to link roots to major cracks or demonstrate exclusivity of tree as cause. Minor cracking to the footing was likely contributed to by a tree root but did not justify removal or compensation. Dead wood in the tree posed potential risk, which was sufficient for a limited order for dead wood removal.

Court Disposition

Application to remove tree and for compensation dismissed; limited order for removal of dead wood from tree only.

Orders

  • ['Application to remove the Eucalyptus pilularis (Blackbutt) is dismissed.' 'Application for compensation is dismissed.' "Within 60 days, respondents to engage and pay for AQF level 3 arborist to remove all dead wood >30mm diameter from the Blackbutt closest to the applicant's garage, in accordance with AS4373:2007...