Morrison v Ackland [2022] NSWLEC 1413

Morrison v Ackland [2022] NSWLEC 1413

The Court was required to give effect to the parties' agreement because, apart from the unavailable original Pt 2A orders concerning the single Magnolia, the pre-jurisdictional requirements were satisfied and the agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979. The damage to the retaining wall and causal nexus with Mr Ackland's trees engaged s 10(2)(a) and enlivened the power to make orders under the Trees Act, while the single Magnolia could not satisfy s 14A(1) because Pt 2A applies only to groups of 2 or more trees forming a hedge.

Jurisdiction
Australia
Judgment Date
10 August 2022
Procedural Posture
Class 2 Trees Dispute Between Neighbours / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Consent Orders
Outcome
Proceedings disposed of by consent orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.
Legal Topics
['obstruction of View by Tree' 'whether Trees Form a Hedge' 'damage to Retaining Wall and Fence by Tree Roots' 'conciliation Agreement' 'consent Orders']
['land and Environment' 'trees Disputes Between Neighbours'] ['obstruction of View by Tree' 'whether Trees Form a Hedge' 'damage to Retaining Wall and Fence by Tree Roots' 'conciliation Agreement' 'consent Orders']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Trees Dispute Between Neighbours / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Consent Orders

Legal Issues

  1. 1 ["Whether Mr Ackland's trees caused, were causing, or were likely in the near future to cause damage to Ms Morrison's property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." "Whether Ms Morrison's Magnolia grandiflora formed a hedge for the purpose of Pt 2A and s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the parties' s 34 agreement was a decision the Court could have made in the proper exercise of its functions."]

Ratio Decidendi

The Court was required to give effect to the parties' agreement because, apart from the unavailable original Pt 2A orders concerning the single Magnolia, the pre-jurisdictional requirements were satisfied and the agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979. The damage to the retaining wall and causal nexus with Mr Ackland's trees engaged s 10(2)(a) and enlivened the power to make orders under the Trees Act, while the single Magnolia could not satisfy s 14A(1) because Pt 2A applies only to groups of 2 or more trees forming a hedge.

Court Disposition

Proceedings disposed of by consent orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Orders

  • ["The applicant and respondent are to engage Roger Boxall within fourteen (14) days from the date of the Orders to carry out a survey peg out to mark the boundary between the applicant's and the respondent's properties, the cost to be shared equally by the parties." 'Subject to order 3(c), the applicant and the...