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Smith & Hannaford v Zhang & Zhou.

Country/Territory
Australia
Type of court
Others
Date
Mar 4, 2011
Source
UNEP, InforMEA
Court name
Land and Environment Court of New South Wales
Judge
Craig.
Reference number
[2011] NSWLEC 29
Language
English
Subject
Land & soil, Legal questions
Keyword
Liability/compensation
Abstract
The applicants sought an order under the Trees (Disputes Between Neighbours) Act 2006 (“the Act”) that the respondents bear the cost of removal of a Sydney Blue Gum tree. They alleged that the tree, which was growing on the respondents’ land, was causing damage to their property. They also sought compensation for damage that, they alleged, was caused by the tree’s roots. Exploratory trenches were dug to investigate the cause of the cracking. The trenches indicated a large tree root, which was originally thought to have caused the cracking, was cut off 40 cm before the wall, but there were two other roots that passed 300 mm and 790 mm below the base of the house's footing. The evidence of the Applicants' experts was that the cracking was caused by roots from the Sydney Blue Gum.The Respondents' experts believed that the tree's roots were unlikely to have caused the cracking, which was more likely the result of the natural geology of the area. Section 10(2) of the Act provides:The Court must not make an order under this Part unless it is satisfied that the tree concerned:has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, oris likely to cause injury to any person.The Respondents submitted that ss 7 and 10 of the Act require the Applicants to establish, on the balance of probabilities, that the Sydney Blue Gum was the cause of the damage to the property. The Applicant's barrister submitted that this interpretation was incorrect, because the decision of the Court was administrative in nature and did not attract the principles of "onus". The Judge held the Applicants did not bear the onus of proof. However, he noted that s 10 of the Act still required him to be "satisfied of the causal nexus between the Sydney Blue Gum and the damage claimed by the Applicants". In dismissing the application, Justice Craig held that he was not satisfied that the Sydney Blue Gum had caused or was causing the damage to the Applicants' property. No order was made as to costs.
Full text
COU-156803.pdf