The Owners – Strata Plan 38217 v Bates [2022] NSWLEC 1100

The Owners – Strata Plan 38217 v Bates [2022] NSWLEC 1100

The respondent's trees (T1-T4) caused damage to the boundary fence and driveway; the condition of the driveway and path was already poor before legal notification; tree removal and fencing works are appropriate remedies, but compensation for driveway or path damage is refused given their pre-existing poor condition and lack of causative evidence for structural or pipe damage; no liability arises for regular maintenance due to leaves or for hedge/sunlight issues under Pt 2A.

Parties
Applicant: The Owners Strata Plan 38217; First Respondent: Neville Paul Bates; Second Respondent: Brenda Kathleen Bates
Jurisdiction
Australia
Judgment Date
18 February 2022
Procedural Posture
Class 2 Application / Final Judgment and Orders
Outcome
Pt 2A application refused; Pt 2 application granted in part.
Legal Topics
Tree Disputes, Damage to Property, Boundary Fencing, Neighbour Nuisance, Obstruction of Sunlight
Property Law Environmental Law Tree Disputes Damage to Property Boundary Fencing Neighbour Nuisance Obstruction of Sunlight

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Parties

The Owners Strata Plan 38217

Applicant

Neville Paul Bates

First Respondent

Brenda Kathleen Bates

Second Respondent

Procedural Posture

Class 2 Application / Final Judgment and Orders

Legal Issues

  1. 1 Whether the respondents' trees caused damage to the applicant's property and fence
  2. 2 Whether compensation for driveway and path damage should be granted
  3. 3 Whether roots in garden beds and pipes justify orders or compensation

Ratio Decidendi

The respondent's trees (T1-T4) caused damage to the boundary fence and driveway; the condition of the driveway and path was already poor before legal notification; tree removal and fencing works are appropriate remedies, but compensation for driveway or path damage is refused given their pre-existing poor condition and lack of causative evidence for structural or pipe damage; no liability arises for regular maintenance due to leaves or for hedge/sunlight issues under Pt 2A.

Court Disposition

Pt 2A application refused; Pt 2 application granted in part.

Orders

  • The Pt 2A application is refused.
  • Pt 2 application granted in part, with orders for boundary survey, tree removal, fencing works, but no compensation for driveway or other damage.