Missenden v Thomson & anor [2012] NSWLEC 1226

Missenden v Thomson & anor [2012] NSWLEC 1226

The evidence established tree roots caused damage to the stormwater pipe and future damage was likely; removal of structural roots necessary for pipe replacement would destabilise the tree. Therefore, the tree should be removed, compensation for pipe replacement was warranted, and costs apportioned with respondents reimbursing half the pipe replacement costs.

Jurisdiction
Australia
Judgment Date
16 August 2012
Procedural Posture
Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application to remove tree upheld; application for compensation upheld in part.
Legal Topics
['damage Caused by Trees' 'removal of Trees' 'compensation for Property Damage']
['property Law' 'environmental Law'] ['damage Caused by Trees' 'removal of Trees' 'compensation for Property Damage']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the tree caused damage to the stormwater pipe' 'Whether the tree should be removed under the Act' 'Whether compensation should be awarded for pipe replacement']

Ratio Decidendi

The evidence established tree roots caused damage to the stormwater pipe and future damage was likely; removal of structural roots necessary for pipe replacement would destabilise the tree. Therefore, the tree should be removed, compensation for pipe replacement was warranted, and costs apportioned with respondents reimbursing half the pipe replacement costs.

Court Disposition

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

Orders

  • ['Application to remove the tree upheld.' 'Respondents to engage and pay for AQF level 3 arborist to remove tree to no greater than 3m above ground, stump to be poisoned.' 'Applicant to provide reasonable access for works.' 'Works to comply with WorkCover NSW Code of Practice for Amenity Tree Industry; no wildlife...