McCormick v Cranch [2007] NSWLEC 298

McCormick v Cranch [2007] NSWLEC 298

The Court was not persuaded to the required degree of reasonable probability that tree roots caused the claimed damage to the fence, stormwater drain or pool, and reimbursement of earlier legal and report expenses was not justified because those matters did not directly relate to the application. However, the one remaining rubber tree could potentially cause damage to recently installed structures and was a relatively poor specimen, so it should be removed at the respondents' expense.

Jurisdiction
Australia
Judgment Date
21 May 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application allowed in part; removal of the remaining rubber tree ordered, while compensation and reimbursement claims were refused.
Legal Topics
['removal of Rubber Tree' 'tree Root Intrusion' 'compensation for Alleged Property Damage' 'boundary Planting']
['trees Disputes Between Neighbours' 'land and Environment'] ['removal of Rubber Tree' 'tree Root Intrusion' 'compensation for Alleged Property Damage' 'boundary Planting']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether tree roots from the respondents' property caused compensable damage to the applicants' fence, stormwater drain, pool, antenna, or other property." "Whether expenses for legal matters, an engineer's report and a tree surgeon's report should be reimbursed." 'Whether the remaining rubber tree at 3 Jordan Place should be removed because of potential damage to recently installed structures.' 'Whether future boundary plantings should be restricted in distance from the boundary.']

Ratio Decidendi

The Court was not persuaded to the required degree of reasonable probability that tree roots caused the claimed damage to the fence, stormwater drain or pool, and reimbursement of earlier legal and report expenses was not justified because those matters did not directly relate to the application. However, the one remaining rubber tree could potentially cause damage to recently installed structures and was a relatively poor specimen, so it should be removed at the respondents' expense.

Court Disposition

Application allowed in part; removal of the remaining rubber tree ordered, while compensation and reimbursement claims were refused.

Orders

  • ['The owners of 3 Jordan Place must have the remaining rubber tree removed at their expense within sixty (60) days of the issue of the orders.' 'If the owners of 3 Jordan Place decide to plant additional dwarf umbrella shrubs or similar, they should be planted no closer than one metre from the boundary.']