Blatchford & anor v Clubley & anor [2013] NSWLEC 1228

Blatchford & anor v Clubley & anor [2013] NSWLEC 1228

The applicants did not prove to the required standard that the sewer roots and blockages were caused by roots of the Leopard tree rather than the Ficus vine, and there was no basis to order removal of the trees or payment for sewer replacement. Detritus from the tree could create a trip hazard sufficient to engage s 10(2)(b), but ordinary maintenance principles meant no discretionary order was warranted on that basis. The Court was not satisfied there was any significant likelihood of tree failure within the next 12 months. However, the displacement of flashing at the southern end of the applicants' balcony was caused by a minor branch of the Leopard tree, satisfying the jurisdictional...

Jurisdiction
Australia
Judgment Date
15 November 2013
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Extempore Principal Judgment
Outcome
Application granted in part.
Legal Topics
['roots in Sewer' 'damage to Property' 'risk of Injury' 'pruning Orders' 'neighbouring Trees']
['environmental Law' 'property Law' 'tree Disputes'] ['roots in Sewer' 'damage to Property' 'risk of Injury' 'pruning Orders' 'neighbouring Trees']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Extempore Principal Judgment

Legal Issues

  1. 1 ["Whether the Leopard tree caused, is causing, or is likely in the near future to cause damage to the applicants' property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Leopard tree is a likely risk of injury to a person under s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Court should order removal of the trees.' "Whether the respondents should meet the cost of replacement of the applicants' household sewer pipe." "Whether a branch near displaced flashing on the applicants' balcony should be pruned."]

Ratio Decidendi

The applicants did not prove to the required standard that the sewer roots and blockages were caused by roots of the Leopard tree rather than the Ficus vine, and there was no basis to order removal of the trees or payment for sewer replacement. Detritus from the tree could create a trip hazard sufficient to engage s 10(2)(b), but ordinary maintenance principles meant no discretionary order was warranted on that basis. The Court was not satisfied there was any significant likelihood of tree failure within the next 12 months. However, the displacement of flashing at the southern end of the applicants' balcony was caused by a minor branch of the Leopard tree, satisfying the jurisdictional...

Court Disposition

Application granted in part.

Orders

  • ['The application is granted in part.' "The respondents are to prune the branch in the vicinity of the displaced flashing at the southern end of the applicants' balcony to a point that is equal to the boundary between the two properties."]