Franco v Mazzetti [2022] NSWLEC 1090

Franco v Mazzetti [2022] NSWLEC 1090

The Court found, based on expert evidence and excavation, that the structural root of the respondent's tree caused uplift and damage to the boundary wall, satisfying the statutory requirements under the Trees Act for an order for removal. There were no viable alternatives to removal given potential for ongoing damage, and the environmental benefits of retention did not outweigh the imperative to prevent further harm.

Parties
Applicant: Joe Franco; Respondent: Ozlem Mazzetti
Jurisdiction
Australia
Judgment Date
24 February 2022
Procedural Posture
Tree Dispute (class 2) / Final Judgment
Outcome
Application granted; orders made for removal of tree and root
Legal Topics
Tree Disputes Between Neighbours, Tree Removal, Damage to Boundary Wall, Application Under Trees (disputes Between Neighbours) Act
Property Law Environmental Law Tree Disputes Between Neighbours Tree Removal Damage to Boundary Wall Application Under Trees (disputes Between Neighbours) Act

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Parties

Joe Franco

Applicant

Ozlem Mazzetti

Respondent

Procedural Posture

Tree Dispute (class 2) / Final Judgment

Legal Issues

  1. 1 Whether tree roots caused damage to boundary wall
  2. 2 Viability of alternatives to tree removal
  3. 3 Balancing benefits of tree retention against imperative to remove

Ratio Decidendi

The Court found, based on expert evidence and excavation, that the structural root of the respondent's tree caused uplift and damage to the boundary wall, satisfying the statutory requirements under the Trees Act for an order for removal. There were no viable alternatives to removal given potential for ongoing damage, and the environmental benefits of retention did not outweigh the imperative to prevent further harm.

Court Disposition

Application granted; orders made for removal of tree and root

Orders

  • Within 45 days and at her expense, the Respondent shall remove the tree to at least 300mm below existing ground level, ensuring all roots emerging from the stump to this depth are separated from the stump.
  • The structural root toward and under the boundary wall, identified in the Laws' report as about 130mm diameter where it emerges into Applicant's property, shall be removed to a point as close to the base of the wall as practical on the Respondent's side.