Manias v Paul [2011] NSWLEC 1048

Manias v Paul [2011] NSWLEC 1048

The tree was found to have caused and likely to continue to cause damage to the applicant's property, and to pose a tripping hazard creating risk of injury. The only practical solution was its removal. Compensation was awarded for repair of the pavers, fence, and concrete strip, as damage was proven and attributable to the tree. No compensation was granted for roof panels or speculative damage.

Jurisdiction
Australia
Judgment Date
03 March 2011
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Decision at First Instance
Outcome
Application to remove tree upheld; application for compensation upheld in part.
Legal Topics
['trees (disputes Between Neighbours) Act 2006' 'neighbour Disputes' 'compensation for Property Damage' 'tree Removal']
['property Law' 'tort Law'] ['trees (disputes Between Neighbours) Act 2006' 'neighbour Disputes' 'compensation for Property Damage' 'tree Removal']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Decision at First Instance

Legal Issues

  1. 1 ["Whether the tree on the respondent's property caused or is likely to cause damage or injury to the applicant's property and/or person" 'Whether the applicant is entitled to removal of the tree' 'Whether the applicant should be awarded compensation for property damage']

Ratio Decidendi

The tree was found to have caused and likely to continue to cause damage to the applicant's property, and to pose a tripping hazard creating risk of injury. The only practical solution was its removal. Compensation was awarded for repair of the pavers, fence, and concrete strip, as damage was proven and attributable to the tree. No compensation was granted for roof panels or speculative damage.

Court Disposition

Application to remove tree upheld; application for compensation upheld in part.

Orders

  • ['The application to remove the tree is upheld.' 'Respondent to engage and pay for AQF level 3 arborist to remove the tree to at least 200mm below ground.' 'Work must comply with WorkCover NSW Code of Practice for the Amenity Tree Industry.' 'Applicant to provide reasonable access for works.' "Respondent/agent to...