Matthews v Rattray [2012] NSWLEC 1019

Matthews v Rattray [2012] NSWLEC 1019

The Court was satisfied that one or more roots from the removed Cypress were the likely cause of displacement in the second section of the retaining wall, enlivening jurisdiction under s 10(2) and justifying an order for removal of roots in the top 150mm of soil there. No orders were warranted for roots near the first section because there was no evidence of damage, the claim concerning the second tree did not arise because it had been removed, possible termite colonisation did not give jurisdiction under the Act, and the Commissioner lacked power to order compensation for the expert reports.

Jurisdiction
Australia
Judgment Date
03 February 2012
Procedural Posture
Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application upheld in part; application for compensation dismissed; roots ordered to be removed.
Legal Topics
['damage to Property by Tree Roots' 'risk of Injury From Trees' 'compensation for Expert Reports' 'court Jurisdiction Under Trees (disputes Between Neighbours) Act 2006']
['land and Environment' 'trees Disputes Between Neighbours'] ['damage to Property by Tree Roots' 'risk of Injury From Trees' 'compensation for Expert Reports' 'court Jurisdiction Under Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether tree roots from the respondents' Cypress caused damage to the applicants' retaining wall so as to enliven the Court's jurisdiction under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made concerning surface roots near another section of the retaining wall.' 'Whether the removed second tree presented a continuing likely risk of injury.' 'Whether the Court could order reimbursement of $1100 for arborist and engineer reports.' 'Whether the Court could make orders concerning possible termite colonisation of a stump.']

Ratio Decidendi

The Court was satisfied that one or more roots from the removed Cypress were the likely cause of displacement in the second section of the retaining wall, enlivening jurisdiction under s 10(2) and justifying an order for removal of roots in the top 150mm of soil there. No orders were warranted for roots near the first section because there was no evidence of damage, the claim concerning the second tree did not arise because it had been removed, possible termite colonisation did not give jurisdiction under the Act, and the Commissioner lacked power to order compensation for the expert reports.

Court Disposition

Application upheld in part; application for compensation dismissed; roots ordered to be removed.

Orders

  • ['The application is upheld in part.' 'The application for compensation is dismissed.' "Within 14 days of the date of this judgment, the respondents are to remove any roots in the top 150mm of soil at the top of the second section of retaining wall to the southwest of the north-eastern corner of the applicants'...