Hampton v Hanna [2019] NSWLEC 1066

Hampton v Hanna [2019] NSWLEC 1066

The CCTV evidence enabled the Court, using arboricultural expertise, to identify the woody root mass obstructing about 70% of the sewer pipe as roots of the respondents' Araucaria columnaris. Although the pipe blockage was located on the respondents' property, the applicant's claim concerned toilet blockage and sewerage backflow damage on her own land caused as a consequence of the neighbouring tree, bringing the matter within the Act. On the balance of probability, the roots of the Araucaria columnaris were causing the sewer blockage and consequent backflow damage and risk of injury, so the Court's jurisdiction was enlivened and it was appropriate to order removal of the tree and removal...

Jurisdiction
Australia
Judgment Date
28 February 2019
Procedural Posture
Class 2 Application Pursuant to S 7 of Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application upheld in part; orders made for removal of the Araucaria columnaris and for removal of woody root incursion and repair or replacement of the sewer pipe. The applicant's claim for compensation for the $600 plumbing bill and application costs was not determined by the Commissioner because Commissioners do...
Legal Topics
['damage to Property' 'consequential Damage' 'risk of Injury' 'tree Roots Blocking Sewer Pipe' 'removal of Tree' 'repair or Replacement of Sewer Pipe']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court Proceedings'] ['damage to Property' 'consequential Damage' 'risk of Injury' 'tree Roots Blocking Sewer Pipe' 'removal of Tree' 'repair or Replacement of Sewer Pipe']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether roots from a tree on the respondents' adjoining land caused, were causing or were likely in the near future to cause damage to the applicant's property or injury to any person." "Whether the Court had jurisdiction where the root blockage in the sewer pipe was located on the respondents' property but the alleged toilet blockage and sewerage backflow damage occurred on the applicant's land." 'Whether the Araucaria columnaris was sufficiently identified as the tree causing the sewer pipe blockage.' 'Whether orders should be made for removal of the tree and for removal of roots and repair or replacement of the sewer pipe.' 'Whether the applicant could obtain compensation for the $600 plumbing bill and the cost of the application.']

Ratio Decidendi

The CCTV evidence enabled the Court, using arboricultural expertise, to identify the woody root mass obstructing about 70% of the sewer pipe as roots of the respondents' Araucaria columnaris. Although the pipe blockage was located on the respondents' property, the applicant's claim concerned toilet blockage and sewerage backflow damage on her own land caused as a consequence of the neighbouring tree, bringing the matter within the Act. On the balance of probability, the roots of the Araucaria columnaris were causing the sewer blockage and consequent backflow damage and risk of injury, so the Court's jurisdiction was enlivened and it was appropriate to order removal of the tree and removal...

Court Disposition

Application upheld in part; orders made for removal of the Araucaria columnaris and for removal of woody root incursion and repair or replacement of the sewer pipe. The applicant's claim for compensation for the $600 plumbing bill and application costs was not determined by the Commissioner because Commissioners do...

Orders

  • ['The respondents are to remove the Araucaria columnaris to near ground level and poison its stump. This tree removal shall be undertaken by an AQF level 3 qualified arborist with appropriate Public Liability insurance. The tree removal shall meet SafeWork NSW Work, Health and Safety (WHS) guidelines, and the...