Lal v Goonetilleke [2019] NSWLEC 1280

Lal v Goonetilleke [2019] NSWLEC 1280

The Court was satisfied that the Jacaranda tree, via a root, had caused minor damage to the applicant's back step. Root and step repair (not tree removal) were appropriate remedies, as the tree was otherwise structurally sound and risk of injury was low. Dropping of leaves and debris did not constitute actionable damage under the Act. The costs of required remedial works were to be apportioned evenly between the parties. The application for removal of the entire tree and for compensation of the filing fee was dismissed.

Parties
Applicant: Praveen Lal; First Respondent: Mark Goonetilleke; Second Respondent: Stephanie Peiris
Jurisdiction
Australia
Judgment Date
04 April 2019
Procedural Posture
Tree Dispute (damage to Property) / Final Judgment at First Instance
Outcome
Application for tree removal dismissed; orders made for root pruning and repair of the step with shared cost.
Legal Topics
Tree Disputes Between Neighbours, Damage to Property, Remedies, Costs
Environmental Law Property Law Tree Disputes Between Neighbours Damage to Property Remedies Costs

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Parties

Praveen Lal

Applicant

Mark Goonetilleke

First Respondent

Stephanie Peiris

Second Respondent

Procedural Posture

Tree Dispute (damage to Property) / Final Judgment at First Instance

Legal Issues

  1. 1 Whether the Jacaranda tree has caused or is likely to cause damage to the applicant's property within the meaning of section 7 of the Trees (Disputes Between Neighbours) Act 2006.
  2. 2 Whether removal or pruning of the tree or its roots is appropriate in the circumstances.
  3. 3 Whether dropping of leaves or debris constitutes compensable damage under the Act.

Ratio Decidendi

The Court was satisfied that the Jacaranda tree, via a root, had caused minor damage to the applicant's back step. Root and step repair (not tree removal) were appropriate remedies, as the tree was otherwise structurally sound and risk of injury was low. Dropping of leaves and debris did not constitute actionable damage under the Act. The costs of required remedial works were to be apportioned evenly between the parties. The application for removal of the entire tree and for compensation of the filing fee was dismissed.

Court Disposition

Application for tree removal dismissed; orders made for root pruning and repair of the step with shared cost.

Orders

  • Prune the root exposed in the lawn with a sharp saw, just inside the applicant's property. Remove the root from the lawn, and infill the resulting void with soil. This work to be completed by an AQF level 3 arborist.
  • Remove the uplifted section of the rear court yard step, and replace so that the step is re-aligned to the original level and made safe.