Dunn-Mukawa v Naylor [2024] NSWLEC 1520

Dunn-Mukawa v Naylor [2024] NSWLEC 1520

The Pt 2 application was refused because the Court was not satisfied that the trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property, and ordinary debris from urban trees did not justify intervention. The Pt 2A application was refused because only trees 2-8 formed a hedge, and even assuming severe obstruction of sunlight or views, the history of the trees, their prior existence and temporary lower height in 2019, the respondents' pruning of some trees, and the presence of other trees meant the applicants' interests did not justify orders interfering with the trees.

Jurisdiction
Australia
Judgment Date
21 August 2024
Procedural Posture
Class 2 Tree Dispute Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing and Final Orders
Outcome
The Part 2 application and the Part 2A application were refused.
Legal Topics
['neighbouring Trees' 'damage to Property' 'obstruction of Sunlight' 'obstruction of Views' 'hedges' 'reasonable Effort to Reach Agreement']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court Proceedings'] ['neighbouring Trees' 'damage to Property' 'obstruction of Sunlight' 'obstruction of Views' 'hedges' 'reasonable Effort to Reach Agreement']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing and Final Orders

Legal Issues

  1. 1 ['Whether the applicants made a reasonable effort to reach agreement with the respondents before seeking orders under Pt 2 and Pt 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the respondents' trees have caused, are causing, or are likely in the near future to cause damage to the applicants' property for the purposes of s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether trees 2-8 formed a hedge to which Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.' "Whether the hedge severely obstructed sunlight to a window of the applicants' dwelling or a view from the applicants' dwelling, and whether the applicants' interest in removing the obstruction outweighed matters suggesting the undesirability of interfering with the trees."]

Ratio Decidendi

The Pt 2 application was refused because the Court was not satisfied that the trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property, and ordinary debris from urban trees did not justify intervention. The Pt 2A application was refused because only trees 2-8 formed a hedge, and even assuming severe obstruction of sunlight or views, the history of the trees, their prior existence and temporary lower height in 2019, the respondents' pruning of some trees, and the presence of other trees meant the applicants' interests did not justify orders interfering with the trees.

Court Disposition

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

Orders

  • ['The Part 2 application is refused.' 'The Part 2A application is refused.' 'The exhibits are returned, other than exhibit A.']