Edwards v Lamphee & anor [2012] NSWLEC 1203

Edwards v Lamphee & anor [2012] NSWLEC 1203

The application was dismissed because the Court was not satisfied that the Jacaranda caused the sewer damage and, in any event, compensation for that damage was not justified because the respondents were not informed until years later. Although the Jacaranda caused damage to the retaining wall, compensation was not justified because the applicant knew of the tree, the damage could have been avoided by locating the retaining wall away from the boundary as shown on the approved plans, and the respondents had no opportunity to contribute to the design or assess repairs. Tree removal was not warranted because no damage of significance was likely to occur in the near future.

Jurisdiction
Australia
Judgment Date
26 July 2012
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
The application is dismissed.
Legal Topics
['damage to Property' 'compensation' 'tree Removal' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'neighbouring Landowners']
['land and Environment' 'trees Disputes Between Neighbours'] ['damage to Property' 'compensation' 'tree Removal' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'neighbouring Landowners']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the Jacaranda caused, is causing, or is likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether compensation should be ordered for repair works to the sewer pipe and retaining wall or fence.' 'Whether the Jacaranda should be removed to prevent further damage.']

Ratio Decidendi

The application was dismissed because the Court was not satisfied that the Jacaranda caused the sewer damage and, in any event, compensation for that damage was not justified because the respondents were not informed until years later. Although the Jacaranda caused damage to the retaining wall, compensation was not justified because the applicant knew of the tree, the damage could have been avoided by locating the retaining wall away from the boundary as shown on the approved plans, and the respondents had no opportunity to contribute to the design or assess repairs. Tree removal was not warranted because no damage of significance was likely to occur in the near future.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed in its entirety.']