McMahon v Slack-Smith [2022] NSWLEC 1639

McMahon v Slack-Smith [2022] NSWLEC 1639

The Pt 2 application was granted in part because roots from T1 and an adjacent Umbrella tree, together with erosion from runoff, caused minor retaining wall damage near T1, and roots from T2, with investigation required around T3, were likely to cause wall damage in the near future. Root pruning and limited wall repair were proportionate remedies, whereas tree removal and root barriers would be disproportionate. The Pt 2A application was refused because the nominated trees were not planted so as to form a hedge within s 14A(1)(a), and in any event the obstruction of views from the applicant's dwelling was minor to moderate rather than severe.

Jurisdiction
Australia
Judgment Date
17 November 2022
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
Application under Pt 2 granted in part; application under Pt 2A refused.
Legal Topics
['damage to Retaining Wall' 'tree Roots' 'high Hedges' 'views and Privacy' 'jurisdiction Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006']
['land and Environment' 'trees Disputes Between Neighbours'] ['damage to Retaining Wall' 'tree Roots' 'high Hedges' 'views and Privacy' 'jurisdiction Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether trees on the respondents' land caused, were causing, or were likely in the near future to cause damage to the applicant's retaining wall or fence." 'Whether orders should be made for tree removal, root pruning, root barriers, or retaining wall repairs.' 'Whether the nominated trees were planted so as to form a hedge for the purposes of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the nominated trees were severely obstructing a view from the applicant's dwelling."]

Ratio Decidendi

The Pt 2 application was granted in part because roots from T1 and an adjacent Umbrella tree, together with erosion from runoff, caused minor retaining wall damage near T1, and roots from T2, with investigation required around T3, were likely to cause wall damage in the near future. Root pruning and limited wall repair were proportionate remedies, whereas tree removal and root barriers would be disproportionate. The Pt 2A application was refused because the nominated trees were not planted so as to form a hedge within s 14A(1)(a), and in any event the obstruction of views from the applicant's dwelling was minor to moderate rather than severe.

Court Disposition

Application under Pt 2 granted in part; application under Pt 2A refused.

Orders

  • ['The respondents, at their expense, shall carefully remove the two or three displaced retaining wall concrete blocks near T1, and cleanly sever and remove roots from T1 and from the adjacent Umbrella tree from the area now absent of concrete blocks, and in close proximity.' 'The respondents, at their expense, shall...