Shagrin & Anor v O’Neil & Anor [2010] NSWLEC 1368

Shagrin & Anor v O’Neil & Anor [2010] NSWLEC 1368

The court held there was insufficient basis in evidence or law to order removal or interference with the Banksia trees for property damage under Part 2 of the Act, as damage resulted from lack of maintenance and not exceptional circumstances. However, the court found that the northernmost tree in the front hedge caused a severe obstruction of the iconic view of the Sydney Opera House from the applicants' main living area, warranting its removal under Part 2A of the Act.

Parties
Applicants: A & L Shagrin; Respondents: J & A O'Neil
Jurisdiction
Australia
Judgment Date
08 December 2010
Procedural Posture
Tree Dispute Application / Ex Tempore Judgment Following Hearing
Outcome
Part 2 application refused. Part 2A application granted in part.
Legal Topics
Trees (neighbours), Damage to Property, Obstruction of Views
Environmental Law Property Law Trees (neighbours) Damage to Property Obstruction of Views

Case Brief

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Parties

A & L Shagrin

Applicants

J & A O'Neil

Respondents

Procedural Posture

Tree Dispute Application / Ex Tempore Judgment Following Hearing

Legal Issues

  1. 1 Whether the Banksia trees cause or contribute to damage to the applicants' garage under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether trees planted as a hedge cause severe obstruction of views under Part 2A of the Act
  3. 3 Jurisdiction of the Court regarding a retaining wall

Ratio Decidendi

The court held there was insufficient basis in evidence or law to order removal or interference with the Banksia trees for property damage under Part 2 of the Act, as damage resulted from lack of maintenance and not exceptional circumstances. However, the court found that the northernmost tree in the front hedge caused a severe obstruction of the iconic view of the Sydney Opera House from the applicants' main living area, warranting its removal under Part 2A of the Act.

Court Disposition

Part 2 application refused. Part 2A application granted in part.

Orders

  • Application under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 refused.
  • Application under Part 2A of the Act granted in part.