Strata Plan 70657 v Strata Plan 65757 [2015] NSWLEC 1438

Strata Plan 70657 v Strata Plan 65757 [2015] NSWLEC 1438

Because the respondent did not dispute further damage and visible exposed roots showed that Trees 2, 3, 7 and 9 had contributed to lifting the driveway while Tree 11 was displacing fence palings, circumstances had changed and the Court had jurisdiction. Removing Trees 2, 7 and 11 was the only practical way to prevent further damage because root cutting near the driveway would compromise stability and health. No order could be made for gutter-guard because no damage from leaves was shown and near-future damage was not indicated. The driveway damage was relatively minor, so the reasonable compensable repair was grinding the raised slab edges, with the respondent to pay 50% of the cheapest...

Jurisdiction
Australia
Judgment Date
28 October 2015
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
The application was upheld, with the gutter-guard element dismissed and orders made for removal of Trees 2, 7 and 11 and a limited contribution to driveway repair works.
Legal Topics
['trees Disputes Between Neighbours' 'tree Root Damage' 'removal of Trees' 'compensation for Property Damage' 'driveway Repairs']
['environmental Law' 'property Law'] ['trees Disputes Between Neighbours' 'tree Root Damage' 'removal of Trees' 'compensation for Property Damage' 'driveway Repairs']

Case Brief

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ['Whether circumstances had changed since the previous Court determination concerning the trees.' "Whether the trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property or injury to a person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made for removal of Trees 2, 7 and 11.' 'Whether compensation should be ordered for gutter-guard, labour, application costs, and driveway repairs.' 'What repair contribution should be ordered for the raised concrete driveway slabs.']

Ratio Decidendi

Because the respondent did not dispute further damage and visible exposed roots showed that Trees 2, 3, 7 and 9 had contributed to lifting the driveway while Tree 11 was displacing fence palings, circumstances had changed and the Court had jurisdiction. Removing Trees 2, 7 and 11 was the only practical way to prevent further damage because root cutting near the driveway would compromise stability and health. No order could be made for gutter-guard because no damage from leaves was shown and near-future damage was not indicated. The driveway damage was relatively minor, so the reasonable compensable repair was grinding the raised slab edges, with the respondent to pay 50% of the cheapest...

Court Disposition

The application was upheld, with the gutter-guard element dismissed and orders made for removal of Trees 2, 7 and 11 and a limited contribution to driveway repair works.

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 Trees 2, 7 and 11 to ground level and immediately poison their stumps.' 'The works in (2) are to be done in...