Whatham v Ellams & anor [2011] NSWLEC 1382

Whatham v Ellams & anor [2011] NSWLEC 1382

The Court was not satisfied that the respondents' trees caused the crack in the boundary or retaining wall, so it had no jurisdiction to order contribution to its rebuilding. Although roots from the respondents' trees may have contributed to damage to an old stormwater pipe, the evidence did not show conclusively that those roots were the primary cause of the leak or that they originated from the respondents' property. The subsidence and cracking of the applicant's dwelling were highly likely due to changes in moisture content of reactive clay soil following replacement of pipes that had been leaking for some time, with other possible contributing factors. Because the pipes had been...

Jurisdiction
Australia
Judgment Date
21 December 2011
Procedural Posture
Class 2 Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Determination
Outcome
The application is dismissed.
Legal Topics
['damage to Property' 'injury to Persons' 'compensation' 'tree Removal' 'stormwater Pipes' 'reactive Clay Soil']
['trees Disputes Between Neighbours' 'property'] ['damage to Property' 'injury to Persons' 'compensation' 'tree Removal' 'stormwater Pipes' 'reactive Clay Soil']

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Procedural Posture

Class 2 Application Under S7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Determination

Legal Issues

  1. 1 ["Whether the respondents' trees caused, are causing, or are likely in the near future to cause damage to the applicant's property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether orders should be made for removal of the respondents' trees or for replacement planting restrictions." 'Whether the respondents should contribute 50% of the cost of rebuilding the brick retaining wall.']

Ratio Decidendi

The Court was not satisfied that the respondents' trees caused the crack in the boundary or retaining wall, so it had no jurisdiction to order contribution to its rebuilding. Although roots from the respondents' trees may have contributed to damage to an old stormwater pipe, the evidence did not show conclusively that those roots were the primary cause of the leak or that they originated from the respondents' property. The subsidence and cracking of the applicant's dwelling were highly likely due to changes in moisture content of reactive clay soil following replacement of pipes that had been leaking for some time, with other possible contributing factors. Because the pipes had been...

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']