Cayley v Gervay [2021] NSWLEC 1254

Cayley v Gervay [2021] NSWLEC 1254

The court was not satisfied that the respondent's trees have caused, are causing, or are likely in the near future to cause significant damage to the applicant's property, nor is there evidence establishing a risk of injury attributable to the trees. Any minor damage or inconvenience is outweighed by the amenity and privacy provided by the trees, and insufficient evidence was provided linking sewer blockages to the trees. Therefore, the statutory requirements for making orders under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 were not met.

Parties
Applicant: Eileen Cayley; First Respondent: Katherine Gervay; Second Respondent: Leonard Gervay
Jurisdiction
Australia
Judgment Date
18 May 2021
Procedural Posture
Class 1 Application Under the Trees (disputes Between Neighbours) Act 2006 / Judgment at First Instance
Outcome
Application dismissed
Legal Topics
Trees (disputes Between Neighbours), Dividing Fences, Damage to Property, Nuisance
Property Law Environmental Law Trees (disputes Between Neighbours) Dividing Fences Damage to Property Nuisance

Case Brief

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Parties

Eileen Cayley

Applicant

Katherine Gervay

First Respondent

Leonard Gervay

Second Respondent

Procedural Posture

Class 1 Application Under the Trees (disputes Between Neighbours) Act 2006 / Judgment at First Instance

Legal Issues

  1. 1 Whether the respondent's trees have caused, are causing, or are likely to cause in the near future, damage to the applicant's property or risk of injury; Whether Council consent to remove trees compels landowner removal; Whether minor damage warrants orders under the Act; Whether compensation or fencing orders should be made

Ratio Decidendi

The court was not satisfied that the respondent's trees have caused, are causing, or are likely in the near future to cause significant damage to the applicant's property, nor is there evidence establishing a risk of injury attributable to the trees. Any minor damage or inconvenience is outweighed by the amenity and privacy provided by the trees, and insufficient evidence was provided linking sewer blockages to the trees. Therefore, the statutory requirements for making orders under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 were not met.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.