Nolan v Chen [2015] NSWLEC 1441

Nolan v Chen [2015] NSWLEC 1441

The Court was satisfied on the balance of probabilities that large woody roots of the respondent's Sydney Blue Gum had largely caused the driveway's raised and cracked condition, that the tree was still growing and damage was likely to increase, and that there was no reasonable alternative construction method allowing both repair of the driveway and retention of the tree. Removal was therefore ordered. However, because the weathered crack and history of concern showed the damage had been present for some time and there was no evidence of significant damage since the respondent acquired the property, no order was made requiring the respondent to pay for driveway repairs or related water...

Jurisdiction
Australia
Judgment Date
29 October 2015
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Damage Allegedly Caused by a Neighbour's Tree / Final Hearing and Extemporaneous Decision
Outcome
The application was upheld. Tree removal and replacement planting were ordered. Compensation for driveway repair costs was not ordered.
Legal Topics
['driveway Damage Caused by Tree Roots' 'orders for Tree Removal' 'compensation for Repair Costs' 'council Tree Preservation Considerations' 'offset Planting']
['environmental Law' 'tree Disputes Between Neighbours' 'property Damage'] ['driveway Damage Caused by Tree Roots' 'orders for Tree Removal' 'compensation for Repair Costs' 'council Tree Preservation Considerations' 'offset Planting']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Damage Allegedly Caused by a Neighbour's Tree / Final Hearing and Extemporaneous Decision

Legal Issues

  1. 1 ["Whether the Sydney Blue Gum on the respondent's property caused damage to the applicant's driveway." 'Whether removal of the tree should be ordered to prevent further damage and allow repair of the driveway.' "Whether the respondent should be ordered to contribute to the applicant's driveway repair costs or water damage costs." 'Whether replacement planting should be ordered if the tree is removed.']

Ratio Decidendi

The Court was satisfied on the balance of probabilities that large woody roots of the respondent's Sydney Blue Gum had largely caused the driveway's raised and cracked condition, that the tree was still growing and damage was likely to increase, and that there was no reasonable alternative construction method allowing both repair of the driveway and retention of the tree. Removal was therefore ordered. However, because the weathered crack and history of concern showed the damage had been present for some time and there was no evidence of significant damage since the respondent acquired the property, no order was made requiring the respondent to pay for driveway repairs or related water...

Court Disposition

The application was upheld. Tree removal and replacement planting were ordered. Compensation for driveway repair costs was not ordered.

Orders

  • ['The application is upheld.' 'Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Sydney Blue Gum adjacent to the common boundary, to no more than 60 cm above ground level, and to...