Muraben v Elmowy [2011] NSWLEC 1273

Muraben v Elmowy [2011] NSWLEC 1273

The three Sydney Red Gums were, on the preponderance of probability, self-sown remnants of original vegetation rather than planted trees, and in any event were not planted so as to form a hedge. The Brush Cherry was topographically and spatially separate from the Angophoras and, even if planted, was an individual tree. Because s 14A(1)(a) was not satisfied, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 did not apply and the Court had no jurisdiction to proceed.

Jurisdiction
Australia
Judgment Date
15 September 2011
Procedural Posture
Class 2 Application Pursuant to S14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application dismissed
Legal Topics
['high Hedges' 'obstruction of Views' 'jurisdiction Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006' 'self Sown Remnant Trees' 'expert Witness as Advocate']
['land and Environment' 'tree Disputes Between Neighbours'] ['high Hedges' 'obstruction of Views' 'jurisdiction Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006' 'self Sown Remnant Trees' 'expert Witness as Advocate']

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Procedural Posture

Class 2 Application Pursuant to S14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ['Whether the trees were planted within the meaning of s 14A(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the trees were planted so as to form a hedge within the meaning of s 14A(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Court had jurisdiction to make orders under Part 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the applicants' expert arborist could be appointed as their agent."]

Ratio Decidendi

The three Sydney Red Gums were, on the preponderance of probability, self-sown remnants of original vegetation rather than planted trees, and in any event were not planted so as to form a hedge. The Brush Cherry was topographically and spatially separate from the Angophoras and, even if planted, was an individual tree. Because s 14A(1)(a) was not satisfied, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 did not apply and the Court had no jurisdiction to proceed.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']