Woodward v Fenner [2019] NSWLEC 1285

Woodward v Fenner [2019] NSWLEC 1285

The visual evidence established a causal nexus between the respondents' tree and the disrupted paving, and there was no practical alternative to removing the tree because root cutting or a root barrier would destabilise it and reinstating the paving without removal would not prevent further disruption. Compensation was refused because the applicant had not proved the respondents' tree caused the sewer pipe damage and the respondents had been unable to prevent the paving damage after Council refused permission to remove the tree.

Jurisdiction
Australia
Judgment Date
25 June 2019
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
Application for compensation refused; application to remove the tree granted.
Legal Topics
['tree Removal' 'damage to Property' 'paving Damage' 'sewer Pipe Damage' 'compensation' 'causation']
['trees Disputes Between Neighbours' 'property Law'] ['tree Removal' 'damage to Property' 'paving Damage' 'sewer Pipe Damage' 'compensation' 'causation']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicant made reasonable efforts to reach agreement with the respondents under s 10(1) of the Trees (Disputes Between Neighbours) Act 2006 (NSW).' "Whether the respondents' paperbark tree caused, is causing, or is likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." 'Whether orders should be made for removal of the tree.' 'Whether the respondents should pay compensation for sewer pipe works and paving repairs.']

Ratio Decidendi

The visual evidence established a causal nexus between the respondents' tree and the disrupted paving, and there was no practical alternative to removing the tree because root cutting or a root barrier would destabilise it and reinstating the paving without removal would not prevent further disruption. Compensation was refused because the applicant had not proved the respondents' tree caused the sewer pipe damage and the respondents had been unable to prevent the paving damage after Council refused permission to remove the tree.

Court Disposition

Application for compensation refused; application to remove the tree granted.

Orders

  • ['The application for compensation is refused.' 'The application to remove the tree is granted.' 'Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove their paperbark tree to...