Burgin v Turnbull [2018] NSWLEC 1412

Burgin v Turnbull [2018] NSWLEC 1412

The Court was not satisfied that the Liquidambar roots caused the retaining wall's condition, which was more likely attributable to inadequate design and construction, soil pressure and hydrostatic pressure, and there was no evidence of deterioration during the applicant's ownership. The Court accepted that...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 August 2018
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
The application is dismissed.
Legal Topics
['damage Allegedly Caused by Tree Roots' 'terracotta Sewer Pipes' 'retaining Wall Damage' 'reasonable Effort to Reach Agreement' 'orders Under the Trees (disputes Between Neighbours) Act 2006 (nsw)']
['trees Disputes Between Neighbours' 'property Law'] ['damage Allegedly Caused by Tree Roots' 'terracotta Sewer Pipes' 'retaining Wall Damage' 'reasonable Effort to Reach Agreement' 'orders Under the Trees (disputes Between Neighbours) Act 2006 (nsw)']

Source-derived case record

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether the respondent's Liquidambar trees caused damage to the applicant's retaining wall." "Whether the respondent's Liquidambar trees damaged the applicant's sewer pipe by root ingress and blockage." 'Whether, if damage was caused, orders should be made under the Trees (Disputes Between Neighbours) Act 2006 (NSW).' 'Whether the applicant had made a reasonable effort to reach agreement with the respondent before commencing proceedings.']

Ratio Decidendi

The Court was not satisfied that the Liquidambar roots caused the retaining wall's condition, which was more likely attributable to inadequate design and construction, soil pressure and hydrostatic pressure, and there was no evidence of deterioration during the applicant's ownership. The Court accepted that Liquidambar roots blocked and thereby damaged the sewer pipe, but the pipe was more than 30 years old and its age and condition were at least a partial cause of root ingress. The respondent had no reason to expect the damage before being notified and promptly removed the trees after receiving the complaint. Considering the s 12 matters, the respondent had already borne the cost of...

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']