The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452

The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452

The Applicant made a reasonable effort to reach agreement, but the evidence did not establish to the required degree of satisfaction that roots from the Respondent's trees caused the sewer pipe damage, and no quantified or continuing gutter damage was proved. Tree 1 and Tree 3 were not shown to have caused damage or to be likely to cause damage in the near future. Tree 2, the weeping fig, had displaced and cracked the boundary wall and was likely as it grew to cause further damage in the near future, making removal at the Respondent's expense appropriate. Compensation was refused.

Jurisdiction
Australia
Judgment Date
31 August 2022
Procedural Posture
Class 1 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment and Orders
Outcome
Application granted in part; order made to remove Tree 2; compensation and other tree removal orders refused.
Legal Topics
['neighbouring Trees' 'tree Roots and Sewer Pipe Damage' 'boundary Wall Damage' 'tree Removal Orders' 'compensation Refused' 'expert Evidence']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment Court Proceedings'] ['neighbouring Trees' 'tree Roots and Sewer Pipe Damage' 'boundary Wall Damage' 'tree Removal Orders' 'compensation Refused' 'expert Evidence']

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Procedural Posture

Class 1 Application Under S 7 (pt 2) of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment and Orders

Legal Issues

  1. 1 ['Whether the Applicant made a reasonable effort to reach agreement with the Respondent under s 10(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether roots from the Respondent's trees caused damage to the Applicant's sewer pipe." 'Whether the weeping fig caused or was likely in the near future to cause damage to the boundary wall.' 'Whether orders should be made for removal of Tree 1, Tree 2 or Tree 3.' 'Whether compensation or costs should be ordered.']

Ratio Decidendi

The Applicant made a reasonable effort to reach agreement, but the evidence did not establish to the required degree of satisfaction that roots from the Respondent's trees caused the sewer pipe damage, and no quantified or continuing gutter damage was proved. Tree 1 and Tree 3 were not shown to have caused damage or to be likely to cause damage in the near future. Tree 2, the weeping fig, had displaced and cracked the boundary wall and was likely as it grew to cause further damage in the near future, making removal at the Respondent's expense appropriate. Compensation was refused.

Court Disposition

Application granted in part; order made to remove Tree 2; compensation and other tree removal orders refused.

Orders

  • ['The application is granted to the extent of the following orders.' "The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 2 (weeping fig) near the eastern boundary and to grind it stump to at least 200 mm below ground level or...