Tooth v McCombie [2011] NSWLEC 1004

Tooth v McCombie [2011] NSWLEC 1004

Although the trees met the hedge requirements of Part 2A and may have severely obstructed views when the application was made, by the time of the hearing they had been reduced and no longer obstructed any nominated view. Because s 14E(2)(a)(ii) requires the trees to be presently severely obstructing a view, the jurisdictional test was not satisfied and the Court had no jurisdiction to make any order, including for future maintenance.

Jurisdiction
Australia
Judgment Date
19 January 2011
Procedural Posture
Class 2 Application Pursuant to S14 a Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Extemporaneous Decision
Outcome
Application dismissed
Legal Topics
['hedge' 'obstruction of View' 'jurisdiction Under Part 2 A' 'future Maintenance of Trees']
['land and Environment' 'trees Disputes Between Neighbours'] ['hedge' 'obstruction of View' 'jurisdiction Under Part 2 A' 'future Maintenance of Trees']

Case Brief

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Procedural Posture

Class 2 Application Pursuant to S14 a Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Extemporaneous Decision

Legal Issues

  1. 1 ['Whether the nominated trees formed a hedge to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applies.' "Whether, at the time of the hearing, the trees were severely obstructing a view from the applicants' dwelling so as to enliven the Court's jurisdiction to make an order." 'Whether the Court could make an order for future maintenance of the trees after they had been pruned before the hearing.']

Ratio Decidendi

Although the trees met the hedge requirements of Part 2A and may have severely obstructed views when the application was made, by the time of the hearing they had been reduced and no longer obstructed any nominated view. Because s 14E(2)(a)(ii) requires the trees to be presently severely obstructing a view, the jurisdictional test was not satisfied and the Court had no jurisdiction to make any order, including for future maintenance.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']