Harvey v Darley Trading Pty Limited [2015] NSWLEC 1488

Harvey v Darley Trading Pty Limited [2015] NSWLEC 1488

Based on evidence provided (plumbing invoices, photographs, affidavits), the tree has caused and will continue to cause damage to the applicant's property by blocking the sewer and displacing paving; the discretionary considerations do not outweigh the need for removal, and orders are granted for the tree’s removal within 90 days, with mechanisms for cost recovery if further blockages occur before removal.

Parties
Applicant: Mr Richard Harvey; Respondent: Darley Trading Pty Limited
Jurisdiction
Australia
Judgment Date
25 November 2015
Procedural Posture
Tree Dispute (damage to Property) / Judgment and Orders
Outcome
Application upheld
Legal Topics
Tree Disputes, Damage to Sewers by Tree Roots, Statutory Jurisdiction Under Trees (disputes Between Neighbours) Act 2006
Environmental Law Property Law Tree Disputes Damage to Sewers by Tree Roots Statutory Jurisdiction Under Trees (disputes Between Neighbours) Act 2006

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Parties

Mr Richard Harvey

Applicant

Darley Trading Pty Limited

Respondent

Procedural Posture

Tree Dispute (damage to Property) / Judgment and Orders

Legal Issues

  1. 1 Whether the tree on the respondent's property has caused, is causing, or is likely to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.
  2. 2 Whether an order for removal of the tree should be made, considering discretionary factors in s 12 of the Act.

Ratio Decidendi

Based on evidence provided (plumbing invoices, photographs, affidavits), the tree has caused and will continue to cause damage to the applicant's property by blocking the sewer and displacing paving; the discretionary considerations do not outweigh the need for removal, and orders are granted for the tree’s removal within 90 days, with mechanisms for cost recovery if further blockages occur before removal.

Court Disposition

Application upheld

Orders

  • The application is upheld.
  • Within 90 days the respondent is to engage and pay for an arborist (min. AQF level 3) with insurance to remove the tree to ground level and poison the stump to prevent suckering. This does not prevent further stump/root removal.