Ferderer v Cunninghame [2021] NSWLEC 1097

Ferderer v Cunninghame [2021] NSWLEC 1097

The Court was not satisfied on the balance of probabilities that the Leyland Cypress trees caused the damage to the applicant's sheds or water tank filters. The evidentiary burden was not discharged, and the zoning was found to have sufficient residential character to enliven jurisdiction, but no remedy was warranted.

Jurisdiction
Australia
Judgment Date
02 March 2021
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Judgment
Outcome
Application refused
Legal Topics
['damage Caused by Trees' 'zoning' 'evidentiary Burden' 'remedies']
['property Law' 'environmental Law'] ['damage Caused by Trees' 'zoning' 'evidentiary Burden' 'remedies']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Judgment

Legal Issues

  1. 1 ['Whether the land is within a zone to which the Trees Act applies' "Whether trees have caused damage to the applicant's property" 'Whether the evidentiary burden was discharged by the applicant' 'Appropriate remedies if damage is established']

Ratio Decidendi

The Court was not satisfied on the balance of probabilities that the Leyland Cypress trees caused the damage to the applicant's sheds or water tank filters. The evidentiary burden was not discharged, and the zoning was found to have sufficient residential character to enliven jurisdiction, but no remedy was warranted.

Court Disposition

Application refused

Orders

  • ['The application is refused.' 'The exhibits are returned apart from Exhibits A and B.']