Cattell & Anor v Riordan & Anor [2011] NSWLEC 1297

Cattell & Anor v Riordan & Anor [2011] NSWLEC 1297

The Pt 2 application failed because there was no evidence that the respondents' trees had caused or were causing damage to the applicants' stormwater pipe, and the Court accepted that they were unlikely to damage a properly constructed PVC pipe in the near future, so jurisdiction under s 10(2) was not enlivened. The Pt 2A application succeeded because the three trees formed a hedge at least 2.5 m high on adjoining land, severely obstructed the applicants' view from their living room, and the applicants' interest in restoring that view outweighed matters against interfering with the trees; pruning orders were therefore appropriate.

Jurisdiction
Australia
Judgment Date
22 September 2011
Procedural Posture
Class 1 Application Under the Trees (disputes Between Neighbours) Act 2006 for Pruning to Prevent Damage and to Remedy, Restrain or Prevent Severe Obstruction of a View / Final Decision After Hearing
Outcome
The application under Pt 2 to prune trees to prevent damage was dismissed; the application under Pt 2A to remedy, restrain or prevent a severe obstruction of a view was upheld; pruning orders were made.
Legal Topics
['damage to Property by Trees' 'hedge Obstruction of View' 'pruning Orders' 'stormwater Pipe' 'severe Obstruction of View']
['land and Environment' 'trees Disputes' 'property'] ['damage to Property by Trees' 'hedge Obstruction of View' 'pruning Orders' 'stormwater Pipe' 'severe Obstruction of View']

Case Brief

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Procedural Posture

Class 1 Application Under the Trees (disputes Between Neighbours) Act 2006 for Pruning to Prevent Damage and to Remedy, Restrain or Prevent Severe Obstruction of a View / Final Decision After Hearing

Legal Issues

  1. 1 ["Whether the respondents' three Lilly Pilly trees had caused, were causing, or were likely in the near future to cause damage to the applicants' stormwater pipe so as to enliven jurisdiction under Pt 2 of the Act." 'Whether trees T1, T2 and T3 formed a hedge to which Pt 2A of the Act applied.' "Whether the trees were severely obstructing a view from the applicants' dwelling." "Whether the severity and nature of the obstruction meant the applicants' interest in having the obstruction removed, remedied or restrained outweighed matters suggesting the undesirability of interfering with the trees." 'What pruning orders, if any, should be made.']

Ratio Decidendi

The Pt 2 application failed because there was no evidence that the respondents' trees had caused or were causing damage to the applicants' stormwater pipe, and the Court accepted that they were unlikely to damage a properly constructed PVC pipe in the near future, so jurisdiction under s 10(2) was not enlivened. The Pt 2A application succeeded because the three trees formed a hedge at least 2.5 m high on adjoining land, severely obstructed the applicants' view from their living room, and the applicants' interest in restoring that view outweighed matters against interfering with the trees; pruning orders were therefore appropriate.

Court Disposition

The application under Pt 2 to prune trees to prevent damage was dismissed; the application under Pt 2A to remedy, restrain or prevent a severe obstruction of a view was upheld; pruning orders were made.

Orders

  • ['The application under part 2 to prune trees to prevent damage to property is dismissed.' 'The application under part 2A to remedy, restrain or prevent a severe obstruction to a view is upheld.' 'The respondents are to arrange and pay for the pruning of trees T1, T2 and T3 to a height of not more than 3.5 metres...