Somuncu v McDowell [2024] NSWLEC 1089

Somuncu v McDowell [2024] NSWLEC 1089

The applicants made a reasonable effort to reach agreement and the trees had damaged the boundary fence and one or both trees had damaged part of the applicants' stormwater drainage system, with further damage likely if the trees remained. However, the drainage system was already degraded, the property damage for which compensation was claimed largely existed when the applicants purchased the property, tree roots were only a minor causal factor compared with pre-existing pipe condition and maintenance issues, and the respondent was not responsible for loss arising from those pre-existing problems. Removal of both trees was the practical means of preventing further damage, but compensation...

Jurisdiction
Australia
Judgment Date
01 March 2024
Procedural Posture
Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
The application to remove the two trees was upheld and the application for compensation was dismissed.
Legal Topics
['pt 2 Application' 'damage to Neighbouring Property' 'tree Removal' 'compensation' 'stormwater Drainage' 'boundary Fence' 'reasonable Effort to Reach Agreement']
['trees (disputes Between Neighbours)' 'property' 'dividing Fences'] ['pt 2 Application' 'damage to Neighbouring Property' 'tree Removal' 'compensation' 'stormwater Drainage' 'boundary Fence' 'reasonable Effort to Reach Agreement']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicants made a reasonable effort to reach agreement with the respondent.' "To what extent the two mature fig trees caused damage to the applicants' property." 'Whether tree removal was required to prevent further damage.' 'Whether the respondent could reasonably have prevented the damage.' 'Whether the applicants suffered compensable loss, including whether the relevant damage existed when they purchased the property.' 'Whether orders should be made for replacement of the boundary fence.']

Ratio Decidendi

The applicants made a reasonable effort to reach agreement and the trees had damaged the boundary fence and one or both trees had damaged part of the applicants' stormwater drainage system, with further damage likely if the trees remained. However, the drainage system was already degraded, the property damage for which compensation was claimed largely existed when the applicants purchased the property, tree roots were only a minor causal factor compared with pre-existing pipe condition and maintenance issues, and the respondent was not responsible for loss arising from those pre-existing problems. Removal of both trees was the practical means of preventing further damage, but compensation...

Court Disposition

The application to remove the two trees was upheld and the application for compensation was dismissed.

Orders

  • ['The application to remove the two trees is upheld.' 'The application for compensation is dismissed.' "The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the two fig trees to ground level and to poison their stumps...