Elmer v Dutfield [2018] NSWLEC 1192

Elmer v Dutfield [2018] NSWLEC 1192

The Court was not satisfied that the cypress trees caused the retaining wall damage, given earlier engineering evidence identifying other possible causes, lack of recent engineering evidence, and no significant increase in cracking over 18 years. The trees were not shown to be likely to fail in the near future, debris had not been shown to cause damage and was a routine maintenance issue, and the obstruction of sunlight by the trees was not severe. None of the statutory elements enlivened the Court's jurisdiction, so the application was dismissed.

Jurisdiction
Australia
Judgment Date
16 April 2018
Procedural Posture
Class 2 Application Under Parts 2 and 2 a of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Hearing; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Application dismissed.
Legal Topics
['retaining Wall Damage' 'tree Damage and Injury' 'causation' 'debris and Gutters' 'hedge Obstruction of Sunlight']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court Jurisdiction'] ['retaining Wall Damage' 'tree Damage and Injury' 'causation' 'debris and Gutters' 'hedge Obstruction of Sunlight']

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Procedural Posture

Class 2 Application Under Parts 2 and 2 a of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Hearing; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ["Whether the cypress trees have caused, are causing, or are likely in the near future to cause damage to the applicant's property under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." 'Whether the cypress trees are likely to injure anyone or fail in the near future.' 'Whether debris from the cypress trees caused damage justifying orders.' "Whether the cypress trees form a hedge that severely obstructs sunlight to windows of the applicant's dwelling under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW)."]

Ratio Decidendi

The Court was not satisfied that the cypress trees caused the retaining wall damage, given earlier engineering evidence identifying other possible causes, lack of recent engineering evidence, and no significant increase in cracking over 18 years. The trees were not shown to be likely to fail in the near future, debris had not been shown to cause damage and was a routine maintenance issue, and the obstruction of sunlight by the trees was not severe. None of the statutory elements enlivened the Court's jurisdiction, so the application was dismissed.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']