Carnus v Chiaraglio [2011] NSWLEC 1133

Carnus v Chiaraglio [2011] NSWLEC 1133

The Court was satisfied that roots of the Lemon-scented Gum caused damage to the applicant's rear garden bed retaining walls and lifted pavers, but was not satisfied that the tree caused structural damage to the kitchen extension slab, the original Victorian-era structure, or the cost of relaying pavers at the rear door, given alternative causes including deteriorated gutters, cyclical wetting and drying, age-related cracking and lack of quantified proof. No apportionment was appropriate: the tree was principally on the respondent's property, the respondent had been unreasonable in denying responsibility despite prolonged concerns, and any increased shared ownership had occurred during...

Jurisdiction
Australia
Judgment Date
27 May 2011
Procedural Posture
Class 2 Tree Dispute Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing; Further on Site Hearing Set for 16 June 2011
Outcome
Damage caused by the tree was established only for the rear garden bed retaining walls and upper rear level pavers; no apportionment was appropriate for costs associated with any order concerning the tree or rectification of that damage; further hearing and service directions were made before any order for removal...
Legal Topics
['damage Caused by Tree Roots' 'apportionment of Costs' 'tree Removal' 'access to Non Party Properties' 'opportunity to Be Heard']
['tree Disputes' 'property Damage' 'land and Environment Court Proceedings'] ['damage Caused by Tree Roots' 'apportionment of Costs' 'tree Removal' 'access to Non Party Properties' 'opportunity to Be Heard']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing; Further on Site Hearing Set for 16 June 2011

Legal Issues

  1. 1 ["Whether the Lemon-scented Gum located principally on the respondent's property caused the categories of damage alleged by the applicant." 'Whether the respondent should bear all costs of any orders or whether costs should be apportioned between the parties.' 'Whether the Court should make orders for removal of or interference with the tree, or access to other properties, without hearing the owners of affected non-party properties.']

Ratio Decidendi

The Court was satisfied that roots of the Lemon-scented Gum caused damage to the applicant's rear garden bed retaining walls and lifted pavers, but was not satisfied that the tree caused structural damage to the kitchen extension slab, the original Victorian-era structure, or the cost of relaying pavers at the rear door, given alternative causes including deteriorated gutters, cyclical wetting and drying, age-related cracking and lack of quantified proof. No apportionment was appropriate: the tree was principally on the respondent's property, the respondent had been unreasonable in denying responsibility despite prolonged concerns, and any increased shared ownership had occurred during...

Court Disposition

Damage caused by the tree was established only for the rear garden bed retaining walls and upper rear level pavers; no apportionment was appropriate for costs associated with any order concerning the tree or rectification of that damage; further hearing and service directions were made before any order for removal...

Orders

  • ["The applicant is to serve by personal service by no later than 4.30pm on Wednesday 8 June 2011 a copy of the judgment, supplementary hearing notice direction, Tree Dispute Application, Tree Dispute Claim Details and the respondent's solicitors' Notice of Appearance on the owners of 83, 85 and 91 Shepherd Street...