Collaro v Tate and ors [2008] NSWLEC 1337

Collaro v Tate and ors [2008] NSWLEC 1337

The 2001 compensation claim was statute barred by the six-year limitation period. The Court was satisfied that the roots of all five trees were likely to have caused damage to the applicant's paving and that the Magnolia had caused lifting by larger exposed roots. Removal of the trees was not necessary because an independently installed continuous root barrier was likely to prevent future damage, and the applicant had not unreasonably contributed to the damage by relying on the respondents' prior representations and work. Compensation for re-paving and necessary air-conditioning disconnection and reconnection was appropriate, but the application-related costs were not recoverable.

Jurisdiction
Australia
Judgment Date
28 July 2008
Procedural Posture
Trees (neighbours) Application / Ex Tempore Judgment
Outcome
Application partly granted; removal of the trees refused; root barrier and compensation ordered.
Legal Topics
['statutory Limitation on Compensation Claims' 'tree Root Damage' 'root Barriers' 'compensation for Paving Damage' 'risk of Injury From Lifting Paving']
['trees Disputes' 'property' 'limitation of Actions'] ['statutory Limitation on Compensation Claims' 'tree Root Damage' 'root Barriers' 'compensation for Paving Damage' 'risk of Injury From Lifting Paving']

Case Brief

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Procedural Posture

Trees (neighbours) Application / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the respondents' trees caused, were causing, or were likely in the near future to cause damage to the applicant's property under the Trees (Disputes Between Neighbours) Act 2006." "Whether the applicant's claim for compensation for re-laying paving in 2001 was statute barred." 'Whether removal of the trees or installation of an appropriate root barrier was the proper remedy.' 'Whether compensation should be ordered for re-paving and disconnection and reconnection of the air-conditioning unit.' 'Whether the applicant should recover the Court application fee, photocopying and photos.']

Ratio Decidendi

The 2001 compensation claim was statute barred by the six-year limitation period. The Court was satisfied that the roots of all five trees were likely to have caused damage to the applicant's paving and that the Magnolia had caused lifting by larger exposed roots. Removal of the trees was not necessary because an independently installed continuous root barrier was likely to prevent future damage, and the applicant had not unreasonably contributed to the damage by relying on the respondents' prior representations and work. Compensation for re-paving and necessary air-conditioning disconnection and reconnection was appropriate, but the application-related costs were not recoverable.

Court Disposition

Application partly granted; removal of the trees refused; root barrier and compensation ordered.

Orders

  • ['The application to remove the trees is refused.' 'The owners of 71 Albert Street are to install a root barrier to a depth of at least 700 mm or such greater depth as is recommended by the person commissioned to install that barrier.' "The root barrier is to extend 1 m beyond Mr Collaro's boundary to the south-west...