McCormack v Spencer [2008] NSWLEC 1285

McCormack v Spencer [2008] NSWLEC 1285

On any permissible construction of the Act applied to the facts, Mr McCormack's claim against the Spencers could not be maintained. If he was an owner of the right of carriageway and the tree was principally on the Spencers' land, he would be a co-owner on whose land the tree was principally located and could not apply against co-owners. If he was an owner and the tree was principally on the land to the south, no cause of action lay against the Spencers. If he was not an owner of the right of carriageway, the damaged services and driveway were not on his land and therefore could not found an application under the Act. The application was therefore jurisdictionally futile and was dismissed.

Jurisdiction
Australia
Judgment Date
14 July 2008
Procedural Posture
Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Tree Removal and Compensation for Damage / Judgment After on Site Hearing and Written Submissions
Outcome
Application dismissed.
Legal Topics
['meaning of Owner' 'rights of Carriageway' 'tree Situated on Adjoining Land' 'compensation for Damage to Property' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']
['land and Environment' 'trees Disputes Between Neighbours' 'property Law'] ['meaning of Owner' 'rights of Carriageway' 'tree Situated on Adjoining Land' 'compensation for Damage to Property' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Tree Removal and Compensation for Damage / Judgment After on Site Hearing and Written Submissions

Legal Issues

  1. 1 ['Whether Mr McCormack could apply under s 7 of the Trees (Disputes Between Neighbours) Act 2006 in respect of damage to services and driveway works located within a right of carriageway.' "Whether the Blue Gum was situated principally on the Spencers' land or on land to the south for the purposes of s 4(3) of the Act." 'Whether a holder of a right of carriageway is an occupier, and therefore an owner, of the land over which the right of carriageway exists for the purposes of s 3(1) of the Act.' 'Whether the application could be maintained against the Spencers if Mr McCormack was a co-owner of the land on which the tree was principally situated.']

Ratio Decidendi

On any permissible construction of the Act applied to the facts, Mr McCormack's claim against the Spencers could not be maintained. If he was an owner of the right of carriageway and the tree was principally on the Spencers' land, he would be a co-owner on whose land the tree was principally located and could not apply against co-owners. If he was an owner and the tree was principally on the land to the south, no cause of action lay against the Spencers. If he was not an owner of the right of carriageway, the damaged services and driveway were not on his land and therefore could not found an application under the Act. The application was therefore jurisdictionally futile and was dismissed.

Court Disposition

Application dismissed.

Orders

  • ['The application must be dismissed.']