Fazakerley v Lekovic [2021] NSWLEC 1502

Fazakerley v Lekovic [2021] NSWLEC 1502

The Pt 2 application was refused because, although sewage had overflowed onto the applicants' land, the sewer pipe was Sydney Water's property and not the applicants' property, the evidence did not establish that any obstruction occurred in the section of pipe on the applicants' land, and the applicants did not prove that the respondents' trees caused relevant damage to the applicants' property. The alleged winter shade and minor fence lifting did not justify Pt 2 orders. The Pt 2A application was refused because the pleaded obstruction concerned the backyard rather than a window of a dwelling, and the later assertion that windows were affected was unsupported by evidence and the...

Jurisdiction
Australia
Judgment Date
01 September 2021
Procedural Posture
Class 2 Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
The Pt 2 application and the Pt 2A application were refused.
Legal Topics
['neighbouring Trees' 'tree Roots and Sewer Pipe Obstruction' "damage to Applicant's Property" 'obstruction of Sunlight' 'reasonable Effort to Reach Agreement']
['environmental Law' 'property Law' 'trees Disputes Between Neighbours'] ['neighbouring Trees' 'tree Roots and Sewer Pipe Obstruction' "damage to Applicant's Property" 'obstruction of Sunlight' 'reasonable Effort to Reach Agreement']

Case Brief

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Procedural Posture

Class 2 Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether the applicants made a reasonable effort to reach agreement with the trees' owners before seeking orders." "Whether the respondents' lilly pillies caused, were causing, or were likely in the near future to cause damage to the applicants' property under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006." "Whether the sewer pipe affected by roots was the applicants' property for the purposes of s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the trees severely obstructed sunlight to a window of a dwelling on the applicants' land under Pt 2A of the Trees (Disputes Between Neighbours) Act 2006."]

Ratio Decidendi

The Pt 2 application was refused because, although sewage had overflowed onto the applicants' land, the sewer pipe was Sydney Water's property and not the applicants' property, the evidence did not establish that any obstruction occurred in the section of pipe on the applicants' land, and the applicants did not prove that the respondents' trees caused relevant damage to the applicants' property. The alleged winter shade and minor fence lifting did not justify Pt 2 orders. The Pt 2A application was refused because the pleaded obstruction concerned the backyard rather than a window of a dwelling, and the later assertion that windows were affected was unsupported by evidence and the...

Court Disposition

The Pt 2 application and the Pt 2A application were refused.

Orders

  • ['The Pt 2 application is refused.' 'The Pt 2A application is refused.']