Cofrancesco & anor v Draper & anor [2017] NSWLEC 1757

Cofrancesco & anor v Draper & anor [2017] NSWLEC 1757

The Court could not make orders about the fence because the survey showed it was on the respondents' land and not property on the applicants' land, and the jasmine had not been shown to damage property on the applicants' land. However, the bamboo was principally on the respondents' land and could cause damage to property on the applicants' land, justifying maintenance orders. The Leyland Cypress hedge and Crepe Myrtles were not severely obstructing views from the nominated viewing positions; the obstruction was negligible to minor, so the jurisdictional test in s 14E(2)(a)(ii) was not met and the Part 2A application had to be dismissed.

Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Part 2A application dismissed; limited Part 2 orders made requiring the respondents to remove or kill bamboo on the applicants' property within 5m of the dividing fence every three months.
Legal Topics
['damage to Property by Bamboo and Vine' 'dividing Fence' 'hedge Obstruction of Views' 'jurisdiction Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes' 'neighbours' 'property'] ['damage to Property by Bamboo and Vine' 'dividing Fence' 'hedge Obstruction of Views' 'jurisdiction Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether bamboo or jasmine on the respondents' land caused, was causing, or was likely in the near future to cause damage to property on the applicants' land under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the Court had jurisdiction to make orders concerning the dividing fence where the survey showed the fence was on the respondents' land." 'Whether the Leyland Cypress trees, Maple and Crepe Myrtles were trees to which Part 2A applies.' "Whether the Leyland Cypress trees or Crepe Myrtles were severely obstructing views from the applicants' dwelling under s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006."]

Ratio Decidendi

The Court could not make orders about the fence because the survey showed it was on the respondents' land and not property on the applicants' land, and the jasmine had not been shown to damage property on the applicants' land. However, the bamboo was principally on the respondents' land and could cause damage to property on the applicants' land, justifying maintenance orders. The Leyland Cypress hedge and Crepe Myrtles were not severely obstructing views from the nominated viewing positions; the obstruction was negligible to minor, so the jurisdictional test in s 14E(2)(a)(ii) was not met and the Part 2A application had to be dismissed.

Court Disposition

Part 2A application dismissed; limited Part 2 orders made requiring the respondents to remove or kill bamboo on the applicants' property within 5m of the dividing fence every three months.

Orders

  • ['The Part 2A application is dismissed.' "Within 30 days of the date of these orders the respondents are to engage and pay for an appropriately qualified contractor to remove/ kill any bamboo growing on the applicants' property within 5m of the dividing fence." 'The works in (2) are to be carried out every three...