Listen
NSW Crest

Land and Environment Court
New South Wales

Medium Neutral Citation:
Matthews v Rattray [2012] NSWLEC 1019
Hearing dates:
3 February 2012
Decision date:
03 February 2012
Jurisdiction:
Class 2
Before:
Fakes C
Decision:

Application upheld in part; tree roots to be removed.

Catchwords:
TREES [NEIGHBOURS] Damage to property;
Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Cases Cited:
Robson v Leischke [2008] NSWLEC 152
Clune v Falconer [2008] NSWLEC 1458
Category:
Principal judgment
Parties:
G & P Matthews (Applicants)
R & S Rattray (Respondents)
Representation:
Applicant: Mr G Matthews (Litigant in person)
Respondent: Mr R Rattray (Litigant in person)
File Number(s):
21013 of 2011

Judgment

1COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Kielvale, Murwillumbah against the owners of trees growing on an adjoining property.

2The application seeks the removal of two trees. The respondents have removed the trees but, for the record, the details of the claim are noted. Tree 1 was a Cupressus sp. (Cypress) growing adjacent to a timber sleeper retaining wall on the applicants' property adjoining the common boundary. The applicants contend that the roots of this tree have damaged the retaining wall. Tree 2 is identified in the application as a Silky Oak ( Grevillea robusta ). Evidently this tree was struck by lightning about 5 years ago sending debris onto the applicants' property. As the tree was starting to re-sprout, the applicants were concerned that this may happen again and any flying debris may injure someone.

3The applicants are also seeking reimbursement of a sum of $1100 for reports from an arborist and an engineer. The applicants sought these reports prior to making the application to the Court.

4Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any tree subject to the application has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

5At the hearing, it was noted that the low stump of the Cypress remains as do the roots. The top sleeper in the second section of the retaining wall to the southwest of the north-eastern corner of the applicants' property is displaced; one woody root is clearly visible. I am satisfied to the extent required by s 10(2) that the likely cause of the displacement is one or more roots from the Cypress and, as the Court's jurisdiction is enlivened, orders may be made with respect to these roots.

6The respondent is willing to remove the roots but has concerns about access to the applicants' property. Orders will be made requiring the applicants to provide access for these works on reasonable notice.

7The applicants contend that as surface roots are also visible in the soil at the top of the first section of retaining wall, these may also have caused damage to that part of the wall. I note that this section of the wall is not displaced and is generally in good condition despite it being at least 20 years old. Therefore, in regards to this section of the wall, there is no evidence of any damage being caused to the wall by the roots of the tree and no orders will be made regarding these roots.

8The applicants are also concerned that unless the stump is removed it may be colonised by termites, which may then damage the sleepers. In Robson v Leischke [2008] NSWLEC 152, Preston CJ states in part:

189 ....Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's prope r ty : Dooley v Newell [2007] NSWLEC 715 at [22]-[23].

9Similar findings are found in Clune v Falconer [2008] NSWLEC 1458 with respect to mosquitoes and termites. Therefore, the Court has no jurisdiction under the Act to make any orders regarding anything other than trees.

10According to the respondent, Tree 2 was not a Silky Oak. However as that tree has been removed, the risk of injury from another lightning strike, however improbable, does not arise and that part of the application is dismissed.

11In regards to the claim for compensation for the reports, Commissioners do not have the power to order the payment of such costs. A separate claim must be made by a Notice of Motion and would be heard by a Judge of the Court.

12Therefore as a consequence of the forgoing, the Orders of the Court are:

(1)The application is upheld in part.

(2)The application for compensation is dismissed.

(3)Within 14 days of the date of this judgment, the respondents are to remove any roots in the top 150mm of soil at the top of the second section of retaining wall to the southwest of the north-eastern corner of the applicants' property.

(4)The applicants are to provide all reasonable access for this to happen on two days verbal notice.

______________________

J Fakes

Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 06 February 2012