Franco v Mazzetti

Franco brought an application against Mazzetti in the Local Court of New South Wales, seeking an order for the removal of a tree growing from Mazzetti’s land that had roots extending into Franco’s land. The dispute centred on the tree’s roots causing damage to the common boundary wall, which was shared between the two properties. Franco argued that the roots were an unreasonable interference with the use and enjoyment of his property and requested that Mazzetti remove the tree.

The court had to determine whether the tree constituted a reasonable use of Mazzetti’s land and whether the roots extending into Franco’s land constituted an unreasonable interference. The court also needed to decide on the appropriate remedy, which included the removal of the tree or specific parts of it. The court examined expert evidence from an arborist and the potential impact of the tree’s removal on the properties and the surrounding environment.

The court found that the tree’s roots were an unreasonable interference with Franco’s property. The evidence showed that the roots were causing damage to the common boundary wall, which was shared between the two properties. The court accepted that the tree was a reasonable use of Mazzetti’s land, but the roots extending into Franco’s land were not. The court ordered that the tree be removed to a specified depth, with particular attention to the structural root that was causing damage to the boundary wall. The court also specified the qualifications of the arborist who would carry out the work, the safety standards to be followed, and the conditions under which access to Franco’s property would be granted for the removal of the tree and any refuse.