Spinelli v Johnson & ors [2014] NSWLEC 1066

Spinelli v Johnson & ors [2014] NSWLEC 1066

The sewer pipes said to be damaged were on the respondents' land, so the Court could not consider that pipe damage as damage to property on the applicant's land under s 7. Although the evidence of effluent discharge and possible root blockage was sufficient to engage jurisdiction in relation to potential injury under s 10(2)(b), the evidence did not accurately identify the location of pipe damage or establish that the Evergreen Alder caused it. Having considered the discretionary matters in s 12, the Court was not satisfied that removal of the tree, repair of the pipes, or precautionary clearing of the pipes at the respondents' expense was justified.

Jurisdiction
Australia
Judgment Date
14 April 2014
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application is dismissed
Legal Topics
['damage to Property From Tree Roots' 'sewer Pipe Blockage' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'discretionary Matters Under S 12 of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'property Damage' 'potential Injury'] ['damage to Property From Tree Roots' 'sewer Pipe Blockage' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'discretionary Matters Under S 12 of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the Court could make orders under the Trees (Disputes Between Neighbours) Act 2006 concerning sewer pipes located on the respondents' land but servicing the applicant's property" "Whether roots from the Evergreen Alder caused, were causing, or could in the near future cause damage to the applicant's property" 'Whether the tree was likely to cause injury to any person through sewage overflow' "Whether the evidence justified orders for removal of the tree, repair of the sewer pipes, or clearing of the pipes at the respondents' expense"]

Ratio Decidendi

The sewer pipes said to be damaged were on the respondents' land, so the Court could not consider that pipe damage as damage to property on the applicant's land under s 7. Although the evidence of effluent discharge and possible root blockage was sufficient to engage jurisdiction in relation to potential injury under s 10(2)(b), the evidence did not accurately identify the location of pipe damage or establish that the Evergreen Alder caused it. Having considered the discretionary matters in s 12, the Court was not satisfied that removal of the tree, repair of the pipes, or precautionary clearing of the pipes at the respondents' expense was justified.

Court Disposition

Application is dismissed

Orders

  • ['The application is dismissed.']