Blue & anor v Glover & anor [2016] NSWLEC 1502

Blue & anor v Glover & anor [2016] NSWLEC 1502

Although the trees obstructed sunlight to the applicants' downstairs windows, the severity of that obstruction had not increased since the applicants purchased the property, so no orders were made under Part 2A. The Court accepted that roots from the adjacent cypress trees had damaged the applicants' paving and that all 12 trees were likely to cause damage in the foreseeable future. Severing roots or installing a root barrier so close to the stems of trees up to 12 metres tall would reduce stability and create an unacceptable risk of windthrow failure, so removal of the 12 trees was required. Compensation was refused because the respondents had little opportunity to prevent further root...

Jurisdiction
Australia
Judgment Date
28 October 2016
Procedural Posture
Class 2 Application Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment and Orders
Outcome
The application is upheld; tree removal ordered and compensation refused.
Legal Topics
['sunlight Obstruction' 'tree Roots Causing Damage' 'tree Removal' 'compensation for Tree Damage']
['trees Disputes Between Neighbours' 'land and Environment'] ['sunlight Obstruction' 'tree Roots Causing Damage' 'tree Removal' 'compensation for Tree Damage']

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Procedural Posture

Class 2 Application Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment and Orders

Legal Issues

  1. 1 ["Whether the respondents' cypress trees obstructed sunlight to the applicants' windows so as to justify orders under Part 2A of the Trees (Disputes Between Neighbours) Act 2006." "Whether roots from the respondents' cypress trees had caused or were likely to cause damage to the applicants' paving so as to enliven jurisdiction under Part 2 of the Trees (Disputes Between Neighbours) Act 2006." 'Whether removal of the 12 cypress trees was required to prevent further damage.' "Whether the respondents should be ordered to pay compensation for paving works based on the applicants' quote."]

Ratio Decidendi

Although the trees obstructed sunlight to the applicants' downstairs windows, the severity of that obstruction had not increased since the applicants purchased the property, so no orders were made under Part 2A. The Court accepted that roots from the adjacent cypress trees had damaged the applicants' paving and that all 12 trees were likely to cause damage in the foreseeable future. Severing roots or installing a root barrier so close to the stems of trees up to 12 metres tall would reduce stability and create an unacceptable risk of windthrow failure, so removal of the 12 trees was required. Compensation was refused because the respondents had little opportunity to prevent further root...

Court Disposition

The application is upheld; tree removal ordered and compensation refused.

Orders

  • ['The application is upheld.' "Within 60 days of the date of these orders the respondents are to engage at their cost a suitably qualified (minimum AQF level 3) and experienced arborist to remove the 12 cypress trees along their common boundary with the applicants' property." 'The works are to be done in accordance...