Bennett (as Trustee for Access Family Trust) and anor v McLoughlin [2013] NSWLEC 1259

Bennett (as Trustee for Access Family Trust) and anor v McLoughlin [2013] NSWLEC 1259

Only the cracking of the boundary wall met the jurisdictional test under s 10(2)(a) of the Trees Act due to minor contribution from the tree's roots, but as the damage was purely cosmetic and not structural, discretionary considerations meant no order for intervention or removal was justified. Other alleged damages failed due to lack of proof of causation or jurisdictional prerequisites.

Parties
First Applicant: C A Bennett as Trustee for Access Family Trust; Second Applicant: S Teh; Respondent: B McLoughlin
Jurisdiction
Australia
Judgment Date
24 December 2013
Procedural Posture
Tree Dispute (class 2) / Final Judgment
Outcome
Application dismissed
Legal Topics
Trees on Adjoining Land, Damage Caused by Roots, Jurisdictional Prerequisites, Discretionary Considerations, Adequacy of Construction Near Trees
Property Law Environmental Law Trees on Adjoining Land Damage Caused by Roots Jurisdictional Prerequisites Discretionary Considerations Adequacy of Construction Near Trees

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

C A Bennett as Trustee for Access Family Trust

First Applicant

S Teh

Second Applicant

B McLoughlin

Respondent

Procedural Posture

Tree Dispute (class 2) / Final Judgment

Legal Issues

  1. 1 Whether roots of Wallangarra White Gum caused damage to applicant's property
  2. 2 Whether resinous deposits from tree caused compensable damage
  3. 3 Whether tree roots caused cracking in concrete slab

Ratio Decidendi

Only the cracking of the boundary wall met the jurisdictional test under s 10(2)(a) of the Trees Act due to minor contribution from the tree's roots, but as the damage was purely cosmetic and not structural, discretionary considerations meant no order for intervention or removal was justified. Other alleged damages failed due to lack of proof of causation or jurisdictional prerequisites.

Court Disposition

Application dismissed

Orders

  • Application is dismissed
  • Exhibits, other than Exhibit A, are returned