Ratay v Allen

[2010] NSWLEC 1086

Land and Environment Court

of New South Wales

CITATION:	Ratay v Allen [2010] NSWLEC 1086
PARTIES:	APPLICANTS P & M Ratay RESPONDENT A Allen
FILE NUMBER(S):	20070 of 2010
CORAM:	Moore SC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Yang v Scerri [2007] NSWLEC 592 Dooley & anor v Nevell [2007] NSWLEC 715
DATES OF HEARING:	13 April 2010
EX TEMPORE JUDGMENT DATE:	13 April 2010
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

13 April 2010

10/20070 Ratay v Allen

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: This application is made pursuant to the Trees (Disputes Between Neighbours) Act 2006 concerning the roots of two Liquidambar trees located on the adjacent property to the north of the applicants’ property. The more southern of these two trees overhangs the applicants’ property and has an obviously extensive root system that is suckering shoots in the applicants’ property. The second tree is some 15 m further to the north.

2 I have carefully examined various branch attachments that I can see on these trees (as I do not have access to the tree property as the respondent has not attended the hearing). There is no indication of likely structural failure of any observable element.

3 I am satisfied, on the uncontradicted evidence of one of the applicants, that the application was served personally on the respondent and I am also satisfied that the Court’s directions have been sent to him notifying him of the hearing.

4 I have inspected the two locations where the tree roots are suckering on the applicants’ property. There is no sign in the vicinity of either of those roots – one being at the front of the property and the other being at the rear of the property – of any foundation or other damage at the present time. The roots have not caused damage in the past. As consequence, neither of the first two tests under s 10(2)(a) of the Act is satisfied with respect to the tree roots.

5 I have no basis upon which I can conclude that, consistent with the rule of thumb in Yang v Scerri [2007] NSWLEC 592 (which is that the near future for the purposes of the third test in s 10(2)(a) is about a 12 month period) that there is likely to be damage occasioned to the applicants’ property within that period of time – a period I consider appropriate to apply here.

6 Although it has also been put to me that I should be satisfied that there is a risk of injury (although that was not the basis of the application made to the Court) because of cockatoos are interacting with the closer tree and causing its seed pods to discharge into the applicants’ property, that is something that is not caused by the tree but is caused by the cockatoos. Consistent with past decisions of the Court (see Dooley & anor v Nevell [2007] NSWLEC 715) that is not basis upon which to found jurisdiction of the Court under the Act.

7 As a consequence, I am not satisfied that any of the tests under s 10(2) of the Act are satisfied and therefore the Court does not have jurisdiction to make any orders from this application. However, this determination will not preclude some future application being made to the Court under the Act if circumstances change and the roots actually cause damage to the applicants’ property or it can be demonstrated that either the “near future” or “likelihood of injury” test is satisfied at that future time.

8 As a consequence of there being no present jurisdiction, the application is dismissed.

Tim Moore

Senior Commissioner