Stanberg v Adams [2010] NSWLEC 1129

Stanberg v Adams [2010] NSWLEC 1129

The applicant failed to prove, on the balance of probability, that the Bougainvillea, Cupressus macrocarpa, Melaleuca armillaris, X Cupressocyparis leylandii 'Naylor's Blue', Thuja orientalis or Nerium oleander had caused, were causing, or were likely in the near future to cause relevant damage or injury under s 10(2), and the Bougainvillea was in any event outside jurisdiction as a climbing or scrambling plant. The Italian Cypress probably caused coniferous roots to enter an imperfect storm water pipe joint, enlivening jurisdiction, but removal of the tree was disproportionate to the actual damage and not justified; a limited financial contribution to repair the joint was appropriate,...

Jurisdiction
Australia
Judgment Date
28 May 2010
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment After on Site Hearing
Outcome
Application to remove the trees and their roots dismissed; limited conditional order made requiring the respondents to pay 40% of the cost of repair works to the storm water pipe joint/connection.
Legal Topics
['damage to Property by Trees' 'removal of Trees' 'compensation for Storm Water Pipe Damage' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006' 'near Future Damage']
['trees (neighbours)' 'property' 'land and Environment Court Proceedings'] ['damage to Property by Trees' 'removal of Trees' 'compensation for Storm Water Pipe Damage' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006' 'near Future Damage']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Extemporaneous Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether each plant had caused, was causing, or was likely in the near future to cause damage to the applicant's property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Bougainvillea was a tree for the purposes of the Act so that the Court had jurisdiction to make orders about it.' 'Whether removal of the Italian Cypress was an appropriate order where coniferous roots had entered an imperfect storm water pipe joint.' 'Whether compensation or a financial contribution should be ordered for repair of the storm water pipe.']

Ratio Decidendi

The applicant failed to prove, on the balance of probability, that the Bougainvillea, Cupressus macrocarpa, Melaleuca armillaris, X Cupressocyparis leylandii 'Naylor's Blue', Thuja orientalis or Nerium oleander had caused, were causing, or were likely in the near future to cause relevant damage or injury under s 10(2), and the Bougainvillea was in any event outside jurisdiction as a climbing or scrambling plant. The Italian Cypress probably caused coniferous roots to enter an imperfect storm water pipe joint, enlivening jurisdiction, but removal of the tree was disproportionate to the actual damage and not justified; a limited financial contribution to repair the joint was appropriate,...

Court Disposition

Application to remove the trees and their roots dismissed; limited conditional order made requiring the respondents to pay 40% of the cost of repair works to the storm water pipe joint/connection.

Orders

  • ['The application to remove the trees and their roots is dismissed.' "The applicant is to obtain 3 quotes to remove and replace the joint/ connection between the bottom of the downpipe and the southern end of the storm water pipe located near the south-western corner of the applicant's property. No more than 500 mm...