Harvey v Harding [2007] NSWLEC 489

Harvey v Harding [2007] NSWLEC 489

The Court was satisfied that the roots causing the sewer problem probably came from the Jacaranda, and possibly the Broad-leafed Privet, on Ms Harding's property, not from the Camphor Laurel sought to be removed. Because the sewer pipes were old terracotta pipes with defects permitting root entry, the appropriate response was a root proof connection and apportionment of past and future rectification costs, with Ms Harding responsible for 60% and Ms Harvey for 40%.

Jurisdiction
Australia
Judgment Date
19 July 2007
Procedural Posture
Neighbour Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application partly allowed; orders to be made under s 9 of the Trees (Disputes Between Neighbours) Act 2006, but no order for removal of the Camphor Laurel tree.
Legal Topics
['blocked Sewer' 'tree Roots' 'removal of Trees' 'compensation for Sewer Works' 'apportionment of Rectification Costs']
['trees (neighbours) Disputes' 'property' 'land and Environment Court Proceedings'] ['blocked Sewer' 'tree Roots' 'removal of Trees' 'compensation for Sewer Works' 'apportionment of Rectification Costs']

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Procedural Posture

Neighbour Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether blockages to Ms Harvey's sewer were caused by tree roots emanating from Ms Harding's property." 'Whether the Camphor Laurel tree should be removed.' 'Whether past and future sewer rectification costs should be apportioned between the parties.' "Whether access to Ms Harding's property and possible removal of Jacaranda and Privet trees should be permitted for future works."]

Ratio Decidendi

The Court was satisfied that the roots causing the sewer problem probably came from the Jacaranda, and possibly the Broad-leafed Privet, on Ms Harding's property, not from the Camphor Laurel sought to be removed. Because the sewer pipes were old terracotta pipes with defects permitting root entry, the appropriate response was a root proof connection and apportionment of past and future rectification costs, with Ms Harding responsible for 60% and Ms Harvey for 40%.

Court Disposition

Application partly allowed; orders to be made under s 9 of the Trees (Disputes Between Neighbours) Act 2006, but no order for removal of the Camphor Laurel tree.

Orders

  • ["Ms Harding is to pay Ms Harvey within 90 days an amount equal to 60% of the total of the three invoices/receipts attached to Ms Harvey's application." 'Ms Harvey is to obtain three written quotations for the additional sewer works and provide copies to Ms Harding.' 'Within 90 days of being notified that the works...