Galloway v Howard [2009] NSWLEC 1017

Galloway v Howard [2009] NSWLEC 1017

The Court found on the balance of probability that the northern three trees had caused the previously repaired block paving damage and were likely to cause further damage, and that the third tree from the northern end was likely to damage the concrete path and create a trip hazard likely to injure the applicant. Other alleged damage was not shown to have been caused by the respondent's trees and was minor. No compensation was awarded because the respondent had no reason to expect damage before notice, no increase in damage occurred after notice, and the respondent had no opportunity to rectify the paving damage. The parties agreed to works and consented to dismissal of the application.

Jurisdiction
Australia
Judgment Date
14 January 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Tree Root Damage From Neighbouring Trees / Ex Tempore Judgment After Hearing; Application Dismissed by Consent
Outcome
Application dismissed by consent.
Legal Topics
['damage to Paving' 'tree Roots' 'root Barrier' 'compensation for Tree Damage' 'removal of Trees']
['trees Disputes' 'land and Environment' 'neighbour Disputes'] ['damage to Paving' 'tree Roots' 'root Barrier' 'compensation for Tree Damage' 'removal of Trees']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Tree Root Damage From Neighbouring Trees / Ex Tempore Judgment After Hearing; Application Dismissed by Consent

Legal Issues

  1. 1 ["Whether the respondent's trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether any tree was likely to cause injury to any person under s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether compensation should be awarded for paving repairs already carried out or for other alleged damage.' 'Whether orders should be made for removal of trees, root pruning, or installation of a root barrier.']

Ratio Decidendi

The Court found on the balance of probability that the northern three trees had caused the previously repaired block paving damage and were likely to cause further damage, and that the third tree from the northern end was likely to damage the concrete path and create a trip hazard likely to injure the applicant. Other alleged damage was not shown to have been caused by the respondent's trees and was minor. No compensation was awarded because the respondent had no reason to expect damage before notice, no increase in damage occurred after notice, and the respondent had no opportunity to rectify the paving damage. The parties agreed to works and consented to dismissal of the application.

Court Disposition

Application dismissed by consent.

Orders

  • ['By consent of the parties, the application is dismissed.']