Shields v Monhim & anor [2014] NSWLEC 1097

Shields v Monhim & anor [2014] NSWLEC 1097

The Court was satisfied that the applicant had made reasonable efforts to reach agreement and that the Camphor Laurel, situated principally on the respondents' land, had caused substantial damage to the applicant's property, engaging s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. Because the extent and proximity of root growth meant there was no effective means of abating further damage other than removal, orders were made for removal of the Camphor Laurel and for rectification of proven damage to pipes, driveway, garage floor, garage doors and the dividing fence, with compensation limited by jurisdictional and limitation principles. The Court was not satisfied that the...

Jurisdiction
Australia
Judgment Date
23 May 2014
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment After on Site Hearing in the Respondents' Absence
Outcome
Application upheld in part.
Legal Topics
['damage to Property by Tree Roots' 'risk of Injury From Tree' 'compensation for Past Damage' 'rectification Works' 'replacement of Dividing Fence' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'property Damage' 'dividing Fences'] ['damage to Property by Tree Roots' 'risk of Injury From Tree' 'compensation for Past Damage' 'rectification Works' 'replacement of Dividing Fence' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment After on Site Hearing in the Respondents' Absence

Legal Issues

  1. 1 ["Whether the Camphor Laurel and bamboo were wholly or substantially on the respondents' land and affected property on the applicant's land." 'Whether the applicant made a reasonable effort to reach agreement with the respondents.' "Whether the trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property or were likely to cause injury to any person." 'Whether orders should be made for removal of the Camphor Laurel and rectification of damage to pipes, driveway, garage floor, garage doors and house footings.' 'Whether the Court should make orders for replacement of the dividing fence and reimbursement of compensation.']

Ratio Decidendi

The Court was satisfied that the applicant had made reasonable efforts to reach agreement and that the Camphor Laurel, situated principally on the respondents' land, had caused substantial damage to the applicant's property, engaging s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. Because the extent and proximity of root growth meant there was no effective means of abating further damage other than removal, orders were made for removal of the Camphor Laurel and for rectification of proven damage to pipes, driveway, garage floor, garage doors and the dividing fence, with compensation limited by jurisdictional and limitation principles. The Court was not satisfied that the...

Court Disposition

Application upheld in part.

Orders

  • ["By 27 June 2014, the respondents are to engage and pay for an AQF level 3 arborist, with proof of current, adequate and appropriate insurance cover, to remove the Camphor Laurel on the western side of 32 Asquith Street, Silverwater, to ground level; roots are to be ground to a depth of 300mm below ground level to...