Pisula & anor v Luttrell [2011] NSWLEC 1356

Pisula & anor v Luttrell [2011] NSWLEC 1356

The Strelitzia nicolai plants were trees under the Act and, despite their removal, s 4(4) gave the Court jurisdiction. On the evidence, at least one tree on the Respondent's land caused damage to the Applicants' retaining wall. However, there was no evidence that remaining tree material was currently causing damage or was likely to cause damage in the near future. Because the Respondent had not planted the trees, was not informed for a substantial period that damage was worsening, and took reasonable action when notified, it was unreasonable to require him to pay all repair costs; a 30% contribution to the repair costs was appropriate.

Jurisdiction
Australia
Judgment Date
13 December 2011
Procedural Posture
Class 2 Application Under Part 2 S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
Orders made requiring the Applicants to obtain quotes for repair of the damaged section of the retaining wall and requiring the Respondent to reimburse 30% of the repair cost; other claimed compensation items and costs were not awarded.
Legal Topics
['damage to Retaining Wall by Tree Roots' 'removed Tree Still Taken to Be Situated on Land' 'compensation for Tree Damage' 'causal Nexus' 'future Damage' 'costs Powers of Commissioners']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment Court Jurisdiction'] ['damage to Retaining Wall by Tree Roots' 'removed Tree Still Taken to Be Situated on Land' 'compensation for Tree Damage' 'causal Nexus' 'future Damage' 'costs Powers of Commissioners']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether Strelitzia nicolai plants were trees within s 3(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Court had jurisdiction where the trees had been removed before the application.' "Whether at least one Strelitzia plant caused damage to the Applicants' retaining wall." 'Whether remaining roots or shoots were causing or likely in the near future to cause further damage.' 'Whether the Respondent should pay compensation for repair of the retaining wall and, if so, the appropriate contribution.' "Whether the Commissioner could award the Applicants' costs."]

Ratio Decidendi

The Strelitzia nicolai plants were trees under the Act and, despite their removal, s 4(4) gave the Court jurisdiction. On the evidence, at least one tree on the Respondent's land caused damage to the Applicants' retaining wall. However, there was no evidence that remaining tree material was currently causing damage or was likely to cause damage in the near future. Because the Respondent had not planted the trees, was not informed for a substantial period that damage was worsening, and took reasonable action when notified, it was unreasonable to require him to pay all repair costs; a 30% contribution to the repair costs was appropriate.

Court Disposition

Orders made requiring the Applicants to obtain quotes for repair of the damaged section of the retaining wall and requiring the Respondent to reimburse 30% of the repair cost; other claimed compensation items and costs were not awarded.

Orders

  • ['Within 30 days of the dates of these orders, the Applicants are to obtain and provide to the Respondent three quotes for repairing the damaged section of the retaining wall, which is approximately 10 metres in length, to a similar standard and using similar material as the existing retaining wall.' 'The Respondent...