Clarkson v Buda [2010] NSWLEC 1159

Clarkson v Buda [2010] NSWLEC 1159

The roots from the respondent's Camphor Laurel had caused damage to the applicant's property and were likely in the near future to cause further damage, and the nature of the damage was likely to have contributed to injury to an occupant, so the jurisdiction under s 10(2) was enlivened. Because the damage was caused by root growth and no above-ground parts of the tree yet posed a risk of damage or injury, the proper orders were for a root control barrier and compensation, not removal of the tree.

Jurisdiction
Australia
Judgment Date
25 June 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application to remove the tree dismissed; orders made for installation of a root control barrier, access, notice, expiry if the tree is removed within 90 days, and payment of $500 compensation.
Legal Topics
['damage to Driveway/pathway by Tree Roots' 'risk of Injury From Cracked and Lifted Pavement' 'future Root Damage' 'compensation' 'root Control Barrier' 'tree Removal']
['trees (neighbours)' 'property Damage' 'personal Injury Risk'] ['damage to Driveway/pathway by Tree Roots' 'risk of Injury From Cracked and Lifted Pavement' 'future Root Damage' 'compensation' 'root Control Barrier' 'tree Removal']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Camphor Laurel tree caused damage to the applicant's property or was likely in the near future to cause further damage." 'Whether the tree was likely to cause injury to any person.' 'Whether the appropriate order was removal of the tree or orders to limit future root damage and compensate the applicant.']

Ratio Decidendi

The roots from the respondent's Camphor Laurel had caused damage to the applicant's property and were likely in the near future to cause further damage, and the nature of the damage was likely to have contributed to injury to an occupant, so the jurisdiction under s 10(2) was enlivened. Because the damage was caused by root growth and no above-ground parts of the tree yet posed a risk of damage or injury, the proper orders were for a root control barrier and compensation, not removal of the tree.

Court Disposition

Application to remove the tree dismissed; orders made for installation of a root control barrier, access, notice, expiry if the tree is removed within 90 days, and payment of $500 compensation.

Orders

  • ['The application to remove the tree is dismissed.' "The respondent is to engage and pay for an appropriate contractor to install a root control barrier for the full length of the applicant's driveway. The root barrier is to be installed between the dividing fence and the concrete driveway strip on the far eastern...