Owners Strata Plan 31839 v Alafaci & anor [2016] NSWLEC 1083

Owners Strata Plan 31839 v Alafaci & anor [2016] NSWLEC 1083

The Court was satisfied that T3 was at least a cause of the lifting and cracking of the applicant's concrete car park, engaging jurisdiction under s 10(2). Because replacement of the car park would require excavation and root pruning likely to destabilise T3 and detrimentally affect its health, removal of T3 was the only feasible option. The Court was not satisfied that overhanging branches of the other trees were likely in the near future to cause damage or injury sufficient to engage jurisdiction for pruning orders.

Jurisdiction
Australia
Judgment Date
09 March 2016
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination by Consent Orders
Outcome
Application granted; tree removal ordered; all other claims for relief dismissed.
Legal Topics
['damage to Property by Tree Roots' 'risk of Injury' 'tree Removal' 'pruning of Overhanging Branches' 'consent Orders']
['tree Disputes' 'neighbour Disputes' 'land and Environment'] ['damage to Property by Tree Roots' 'risk of Injury' 'tree Removal' 'pruning of Overhanging Branches' 'consent Orders']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Determination by Consent Orders

Legal Issues

  1. 1 ["Whether the Court's jurisdiction under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 was engaged." "Whether Eucalyptus robusta identified as T3 had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether overhanging branches of the other trees were likely in the near future to cause damage to property or injury to any person.' 'Whether orders should be made for removal of T3 and other relief.']

Ratio Decidendi

The Court was satisfied that T3 was at least a cause of the lifting and cracking of the applicant's concrete car park, engaging jurisdiction under s 10(2). Because replacement of the car park would require excavation and root pruning likely to destabilise T3 and detrimentally affect its health, removal of T3 was the only feasible option. The Court was not satisfied that overhanging branches of the other trees were likely in the near future to cause damage or injury sufficient to engage jurisdiction for pruning orders.

Court Disposition

Application granted; tree removal ordered; all other claims for relief dismissed.

Orders

  • ['Within 45 days of the date of this order, the Respondents are to engage and pay for an arborist with a minimum AQF level 3 qualification in Arboriculture and appropriate insurance cover to remove the Eucalyptus robusta identified as T3 in the Tree Dispute Claim Details filed by the Applicant ("the Subject Tree")...