Smith v Thomson [2008] NSWLEC 18

Smith v Thomson [2008] NSWLEC 18

The Court found that although the tree may cause future sewer damage, there was no current basis under the Act to order removal of the tree, but future sewer damage is to be addressed by obtaining two quotes for clearing and repairing the sewer line, with the lowest quote to be paid by Mrs Thomson within 30 days of invoice.

Parties
Applicant: Kenneth George Smith; Respondent: Mrs F. Thomson
Jurisdiction
Australia
Judgment Date
14 January 2008
Procedural Posture
Neighbour Dispute Application / Appeal
Outcome
Appeal upheld
Legal Topics
Damage to Property by Tree, Neighbour Disputes
Property Law Environmental Law Damage to Property by Tree Neighbour Disputes

Case Brief

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Parties

Kenneth George Smith

Applicant

Mrs F. Thomson

Respondent

Procedural Posture

Neighbour Dispute Application / Appeal

Legal Issues

  1. 1 Whether roots and branches of the respondent's tree have caused or are likely to cause damage to the applicant's property
  2. 2 Whether an order for removal of the tree or other remedial action should be made under the Trees (Disputes Between Neighbours) Act 2006

Ratio Decidendi

The Court found that although the tree may cause future sewer damage, there was no current basis under the Act to order removal of the tree, but future sewer damage is to be addressed by obtaining two quotes for clearing and repairing the sewer line, with the lowest quote to be paid by Mrs Thomson within 30 days of invoice.

Court Disposition

Appeal upheld

Orders

  • The appeal is upheld.
  • In any future damage to the sewer line at No. 5 Cormiston Avenue, the owner should obtain two quotes for clearing any blockage and repairs, inform the owner of No. 8 Majors Bay Road of the quotes, and the lowest quote is to be accepted. Upon presentation of the invoice, the owner of No. 8 Majors Bay Road shall pay...