The Owners Strata Plan 37231 v Kao & anor [2012] NSWLEC 1333

The Owners Strata Plan 37231 v Kao & anor [2012] NSWLEC 1333

The visible roots from the Oleander and Fig caused displacement to identified sections of the applicant's footpath and retaining wall, satisfying s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 and engaging the Court's jurisdiction notwithstanding that the trees had been removed. Only rectification of the damaged sections was justified because there was no evidence roots damaged the whole wall or the large surface root caused damage. Because earlier notice may have allowed the respondents to minimise the problem, a discount was appropriate, and the respondents were ordered to reimburse 90% of the cost of the specified rectification work.

Jurisdiction
Australia
Judgment Date
04 December 2012
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Tree Root Damage to Property / Principal Judgment After Hearing
Outcome
Application upheld in part; rectification ordered.
Legal Topics
['damage to Property by Tree Roots' 'removed Trees on Adjoining Land' 'retaining Wall and Footpath Rectification' 'compensation or Contribution to Repair Costs']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['damage to Property by Tree Roots' 'removed Trees on Adjoining Land' 'retaining Wall and Footpath Rectification' 'compensation or Contribution to Repair Costs']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Tree Root Damage to Property / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether roots from trees formerly growing on the respondents' property caused damage to the applicant's retaining wall and footpath." 'Whether the Court had jurisdiction to make orders where the trees had already been removed.' 'What rectification work should be ordered and how the cost should be allocated between the parties.']

Ratio Decidendi

The visible roots from the Oleander and Fig caused displacement to identified sections of the applicant's footpath and retaining wall, satisfying s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 and engaging the Court's jurisdiction notwithstanding that the trees had been removed. Only rectification of the damaged sections was justified because there was no evidence roots damaged the whole wall or the large surface root caused damage. Because earlier notice may have allowed the respondents to minimise the problem, a discount was appropriate, and the respondents were ordered to reimburse 90% of the cost of the specified rectification work.

Court Disposition

Application upheld in part; rectification ordered.

Orders

  • ['The application is upheld in part.' 'Within 30 days of the date of these orders, the applicant must obtain at least two quotes and the respondents may obtain up to two quotes for the work described in paragraphs [19] and [20] of the judgment. Should the applicant require any additional work, such as the...