Drew v Tansey [2019] NSWLEC 1651

Drew v Tansey [2019] NSWLEC 1651

The application was dismissed because the applicants did not provide sufficient evidence that the trees had caused, were causing, or were likely in the near future to cause damage to property, and tree debris and maintenance burdens did not constitute actionable damage under the Act. The evidence also did not establish a likelihood of injury greater than a low and acceptable risk. Although the trees satisfied the hedge requirements in s 14A(1), the applicants did not provide shadow diagrams or other evidence proving severe obstruction of sunlight to windows, and the Court was not satisfied that s 14E(2)(a)(ii) was met.

Jurisdiction
Australia
Judgment Date
28 November 2019
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
The application is dismissed.
Legal Topics
['apprehension of Damage and Injury From Trees' 'hedges' 'obstruction of Sunlight to Windows' 'tree Debris and Maintenance' 'jurisdictional Requirements Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'land and Environment' 'civil Procedure'] ['apprehension of Damage and Injury From Trees' 'hedges' 'obstruction of Sunlight to Windows' 'tree Debris and Maintenance' 'jurisdictional Requirements Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the Radiata Pine trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property under Part 2 of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the trees were likely to cause injury to any person under Part 2 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the row of trees was a hedge for the purposes of Part 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the hedge was severely obstructing sunlight to one or more windows of the applicants' dwelling."]

Ratio Decidendi

The application was dismissed because the applicants did not provide sufficient evidence that the trees had caused, were causing, or were likely in the near future to cause damage to property, and tree debris and maintenance burdens did not constitute actionable damage under the Act. The evidence also did not establish a likelihood of injury greater than a low and acceptable risk. Although the trees satisfied the hedge requirements in s 14A(1), the applicants did not provide shadow diagrams or other evidence proving severe obstruction of sunlight to windows, and the Court was not satisfied that s 14E(2)(a)(ii) was met.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']