Gaicheri v Hanley [2009] NSWLEC 1159

Gaicheri v Hanley [2009] NSWLEC 1159

The respondent did not know or ought not reasonably have known that her trees were causing damage prior to October 2008; it is unreasonable to require her to meet significant rectification costs for past damage, but tree removal is necessary for safety and mitigation of future damage.

Parties
Applicant: M Gaicheri; Respondent: E Hanley
Jurisdiction
Australia
Judgment Date
21 April 2009
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment
Outcome
Application granted in part; orders for tree removal and partial compensation.
Legal Topics
Tree Disputes, Damage by Tree Roots, Removal of Trees, Compensation for Remedial Works
Property Law Environmental Law Tree Disputes Damage by Tree Roots Removal of Trees Compensation for Remedial Works

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Parties

M Gaicheri

Applicant

E Hanley

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment

Legal Issues

  1. 1 Whether trees on respondent's property caused damage to applicant's property
  2. 2 Whether the respondent should pay for past damage rectification
  3. 3 Whether trees should be removed to prevent future damage

Ratio Decidendi

The respondent did not know or ought not reasonably have known that her trees were causing damage prior to October 2008; it is unreasonable to require her to meet significant rectification costs for past damage, but tree removal is necessary for safety and mitigation of future damage.

Court Disposition

Application granted in part; orders for tree removal and partial compensation.

Orders

  • The respondent is to remove both trees at a height of not more than 300 mm above ground level with the stump of the Tallowood to be poisoned after removal to that height.
  • Works are to be carried out by an AQF Level 3 arborist with appropriate insurances.