In a recent case of Dimitrios Michos & Anor v Council of the City of Botany Bay [2012] NSWSC 625, Justice Slattery in the Equity Division of the Supreme Court found the Council of the City of Botany Bay (“Council’) guilty of negligence for failing to install an effective root barrier to prevent damage to the plaintffs’ property.
What did the Court do?
The Court ordered a mandatory injunction against Council requiring it to install a root barrier extending along the full length of the plaintiffs’ boundary where the 3 encroaching native fig trees grew, to a depth of 2m.
The Court also awarded damages to the plaintiffs in the amount of $124,352 for damage caused to the property including $40,000 for loss of enjoyment.
Lessons for Councils
This case demonstrates the delicate balance councils must strike between their desire to protect and preserve trees in their local government area, and their duty to prevent damage to the land of adjoining property owners. If this balance is not found, such as in this case, councils could be liable for damages in the hundreds of thousands of dollars, not including the costs of litigation.
To read more about this case, please see https://www.caselaw.nsw.gov.au/decision/54a637ad3004de94513d9a8a.
To get expert advice from one of our lawyers with environmental and prosecution expertise, contact Keli Law or Simone Brew on 9635 7966.
