Datt & anor v Fevre & anor [2013] NSWLEC 1037

Datt & anor v Fevre & anor [2013] NSWLEC 1037

The Part 2 application failed because the applicants did not establish that the trees caused damage to their property or were likely in the near future to cause damage or injury, and complaints about soil drying, guttering, falling twigs, fire risk, and insects did not satisfy the statutory jurisdictional tests. The Part 2A application succeeded in part because the trees formed a hedge over 2.5m tall and their overhanging foliage severely obstructed sunlight to the north-facing windows of the applicants' sunroom, but removal was unreasonable given the trees' pre-existence, their screening and amenity value, the applicants' extension close to the boundary, and the respondents' recent...

Jurisdiction
Australia
Judgment Date
01 March 2013
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application under Part 2 dismissed. Application under Part 2A upheld in part; pruning ordered.
Legal Topics
['damage to Property' 'risk of Injury From Trees' 'obstruction of Sunlight' 'high Hedge' 'pruning Orders']
['tree Disputes' 'property Law' 'environmental and Planning Law'] ['damage to Property' 'risk of Injury From Trees' 'obstruction of Sunlight' 'high Hedge' 'pruning Orders']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the respondents' Waterhousia floribunda trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property or injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether leaf drop, falling branches, fire risk, or insects from the trees engaged the Court's jurisdiction under Part 2 of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the trees were planted so as to form a hedge and were more than 2.5m tall under s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees severely obstructed sunlight to a window of the applicants' dwelling and whether the applicants' interest in relief outweighed matters suggesting the undesirability of interfering with the trees under s 14E(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether removal or pruning of the trees was the appropriate remedy.']

Ratio Decidendi

The Part 2 application failed because the applicants did not establish that the trees caused damage to their property or were likely in the near future to cause damage or injury, and complaints about soil drying, guttering, falling twigs, fire risk, and insects did not satisfy the statutory jurisdictional tests. The Part 2A application succeeded in part because the trees formed a hedge over 2.5m tall and their overhanging foliage severely obstructed sunlight to the north-facing windows of the applicants' sunroom, but removal was unreasonable given the trees' pre-existence, their screening and amenity value, the applicants' extension close to the boundary, and the respondents' recent...

Court Disposition

Application under Part 2 dismissed. Application under Part 2A upheld in part; pruning ordered.

Orders

  • ['The application to remove the trees is dismissed.' 'The application under s 7 Part 2 is dismissed.' "Within 60 days of the date of this judgment, the applicants are to engage and pay for an AQF 3 arborist or horticulturalist to reduce the ends of the overhanging branches of the Waterhousia floribunda by 1.5 to 2m....