Payn v Allen [2010] NSWLEC 1315

Payn v Allen [2010] NSWLEC 1315

The root incursion at the 4.4m and 6.6m points of the applicants' sewer pipe was caused in part by palms on the respondent's property, satisfying s 10(2), but the age and condition of earthenware pipes was also a contributing factor. The Court ordered compensation and repair, but declined to order removal of the palms or pruning of the Mulberry tree as the legal tests were not satisfied in those respects.

Parties
Applicant: J Payn; Applicant: R Payn; Respondent: J Allen
Jurisdiction
Australia
Judgment Date
15 November 2010
Procedural Posture
Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment at First Instance
Outcome
Application for removal of palms and pruning of Mulberry tree dismissed; compensation and repair orders made against respondent.
Legal Topics
Damage to Property by Trees, Compensation for Property Damage, Orders for Removal or Pruning of Trees
Property Law Environmental Law Damage to Property by Trees Compensation for Property Damage Orders for Removal or Pruning of Trees

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Parties

J Payn

Applicant

R Payn

Applicant

J Allen

Respondent

Procedural Posture

Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment at First Instance

Legal Issues

  1. 1 Whether roots from the respondent's palms caused damage to the applicants' sewer pipe
  2. 2 Whether overhanging branches of the Mulberry tree are likely to cause damage to the applicants' property
  3. 3 What compensation, if any, should be awarded for sewer repairs and unblocking

Ratio Decidendi

The root incursion at the 4.4m and 6.6m points of the applicants' sewer pipe was caused in part by palms on the respondent's property, satisfying s 10(2), but the age and condition of earthenware pipes was also a contributing factor. The Court ordered compensation and repair, but declined to order removal of the palms or pruning of the Mulberry tree as the legal tests were not satisfied in those respects.

Court Disposition

Application for removal of palms and pruning of Mulberry tree dismissed; compensation and repair orders made against respondent.

Orders

  • Application to remove the palms is dismissed.
  • Application to prune the Mulberry is dismissed.