Cheng v Robertson [2024] NSWLEC 1226

Cheng v Robertson [2024] NSWLEC 1226

Although the applicants made a reasonable effort to reach agreement with the respondents, the evidence did not satisfy the Court that roots from the respondents' mandarin tree caused damage to the applicants' stormwater pipe or were likely in the near future to damage the applicants' sewer pipe or other property. Because the jurisdictional requirements in s 10 of the Trees (Disputes Between Neighbours) Act 2006 were not met, the Court could not make the requested orders.

Jurisdiction
Australia
Judgment Date
02 May 2024
Procedural Posture
Class 2 Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Onsite Hearing; Application Determined
Outcome
The application is refused.
Legal Topics
['damage to Neighbouring Property' 'tree Roots' 'stormwater Pipe' 'sewer Pipe' 'reasonable Effort to Reach Agreement' 'retaining Wall' 'common Law Abatement']
['trees Disputes Between Neighbours' 'property'] ['damage to Neighbouring Property' 'tree Roots' 'stormwater Pipe' 'sewer Pipe' 'reasonable Effort to Reach Agreement' 'retaining Wall' 'common Law Abatement']

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Procedural Posture

Class 2 Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Onsite Hearing; Application Determined

Legal Issues

  1. 1 ['Whether the applicants made a reasonable effort to reach agreement with the owners of the land on which the mandarin tree is situated.' "Whether the respondents' mandarin tree damaged the applicants' stormwater pipe." "Whether the respondents' mandarin tree is likely in the near future to damage the applicants' sewer pipe or other property." 'Whether orders should be made for removal of the tree, compensation, investigative or remediation costs, or retaining wall works.']

Ratio Decidendi

Although the applicants made a reasonable effort to reach agreement with the respondents, the evidence did not satisfy the Court that roots from the respondents' mandarin tree caused damage to the applicants' stormwater pipe or were likely in the near future to damage the applicants' sewer pipe or other property. Because the jurisdictional requirements in s 10 of the Trees (Disputes Between Neighbours) Act 2006 were not met, the Court could not make the requested orders.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.' 'The exhibits are returned, other than Exhibits A and B.']