Simcoe v Whybin [2023] NSWLEC 1682

Simcoe v Whybin [2023] NSWLEC 1682

The Court was satisfied that roots from the respondent's Moreton Bay Fig had caused damage to the applicants' paved driveway, front brick gate post and stormwater pipes and had prised a path away from the dwelling wall, and that further root damage was likely in the near future. Although the tree had significant amenity, historical, ecological and aesthetic value, prior root control measures had left large roots along or near the boundary and installation of a root barrier would seriously affect tree health, longevity and possibly stability. Because a root barrier was not a viable option to prevent likely serious damage, tree removal was ordered. The respondent was to bear the cost...

Jurisdiction
Australia
Judgment Date
13 June 2023
Procedural Posture
Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Principal Judgment; Final Orders
Outcome
Orders made requiring the respondent to remove the Moreton Bay Fig at his expense; each party to pay their own costs.
Legal Topics
['roots Damaging Driveway, Gate Post and Stormwater Pipes' 'apprehended Future Property Damage' 'tree Removal Orders' 'costs of Tree Removal' 'tree Was There First']
['land and Environment' 'tree Disputes Between Neighbours' 'property Damage'] ['roots Damaging Driveway, Gate Post and Stormwater Pipes' 'apprehended Future Property Damage' 'tree Removal Orders' 'costs of Tree Removal' 'tree Was There First']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing; Principal Judgment; Final Orders

Legal Issues

  1. 1 ['Whether the jurisdictional requirements in ss 7, 8 and 10 of the Trees (Disputes Between Neighbours) Act 2006 were satisfied.' "Whether roots from the respondent's Moreton Bay Fig had caused, were causing, or were likely in the near future to cause damage to the applicants' property." 'Whether the tree was likely to cause injury to any person.' 'Whether discretionary matters under s 12 of the Trees (Disputes Between Neighbours) Act 2006 supported mitigation or removal of the tree.' "Whether the respondent should bear the cost of the ordered works despite the tree pre-existing the applicants' dwelling."]

Ratio Decidendi

The Court was satisfied that roots from the respondent's Moreton Bay Fig had caused damage to the applicants' paved driveway, front brick gate post and stormwater pipes and had prised a path away from the dwelling wall, and that further root damage was likely in the near future. Although the tree had significant amenity, historical, ecological and aesthetic value, prior root control measures had left large roots along or near the boundary and installation of a root barrier would seriously affect tree health, longevity and possibly stability. Because a root barrier was not a viable option to prevent likely serious damage, tree removal was ordered. The respondent was to bear the cost...

Court Disposition

Orders made requiring the respondent to remove the Moreton Bay Fig at his expense; each party to pay their own costs.

Orders

  • ['Within 90 days of the date of these orders, the respondent, at his expense, is to engage a suitably qualified (minimum AQF level 3) and experienced arborist, with appropriate insurances, to remove the Moreton Bay Fig Tree, grind the stump, and chase and grind the roots to the common property boundary, all to a...