Zignic v Waistell [2010] NSWLEC 1188

Zignic v Waistell [2010] NSWLEC 1188

The roots of the respondent's Ficus macrophylla tree were proven on the balance of probabilities to have caused damage to the applicant's paving, garden edge, and downpipe. Future damage is also likely. The nexus with claimed plumbing damage, however, was not proven. A root barrier is appropriate, but compensation is limited due to lack of notice and causation established for some items; compensation is reduced by 20%.

Parties
Applicant: Ms M Zignic; Respondent: Ms A Waistell
Jurisdiction
Australia
Judgment Date
15 July 2010
Procedural Posture
Tree Dispute (damage to Property) / Judgment (ex Tempore)
Outcome
Application allowed in part
Legal Topics
Trees (disputes Between Neighbours) Act 2006, Damage to Property, Compensation, Root Barrier Orders
Environmental Law Property Law Trees (disputes Between Neighbours) Act 2006 Damage to Property Compensation Root Barrier Orders

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Parties

Ms M Zignic

Applicant

Ms A Waistell

Respondent

Procedural Posture

Tree Dispute (damage to Property) / Judgment (ex Tempore)

Legal Issues

  1. 1 Whether roots from the respondent's tree have caused or are likely to cause damage to the applicant's property
  2. 2 Whether the applicant is entitled to compensation for claimed damage
  3. 3 Appropriateness of a root barrier order

Ratio Decidendi

The roots of the respondent's Ficus macrophylla tree were proven on the balance of probabilities to have caused damage to the applicant's paving, garden edge, and downpipe. Future damage is also likely. The nexus with claimed plumbing damage, however, was not proven. A root barrier is appropriate, but compensation is limited due to lack of notice and causation established for some items; compensation is reduced by 20%.

Court Disposition

Application allowed in part

Orders

  • The installation of a root barrier is upheld.
  • The applicant to obtain and provide three quotes for installation of the impervious root barrier in accordance with council approval.