Allpass v Murphy & Anor [2017] NSWLEC 1706

Allpass v Murphy & Anor [2017] NSWLEC 1706

The applicant failed to provide sufficient evidence demonstrating that the respondents’ bamboo was severely obstructing sunlight to the nominated windows, as required by s 14E(2)(a)(i) of the Act. The majority of shading arose from other trees and the applicant's own building balconies. Accordingly, the jurisdictional threshold was not met and the application was dismissed.

Parties
Applicant: Ian Allpass; Respondent: Tim Murphy; Respondent: Laura Murphy
Jurisdiction
Australia
Judgment Date
08 December 2017
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 Part 2 a / Final Judgment
Outcome
Application dismissed
Legal Topics
Trees and Vegetation Disputes, Neighbourhood Disputes, Obstruction of Sunlight, Evidence Sufficiency
Environmental Law Property Law Trees and Vegetation Disputes Neighbourhood Disputes Obstruction of Sunlight Evidence Sufficiency

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Parties

Ian Allpass

Applicant

Tim Murphy

Respondent

Laura Murphy

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 Part 2 a / Final Judgment

Legal Issues

  1. 1 Whether the respondents’ bamboo constitutes a hedge to which Part 2A of the Trees Act applies
  2. 2 Whether the bamboo is severely obstructing sunlight to the applicant’s windows within the meaning of s 14E(2)(a)(i)
  3. 3 Sufficiency of evidence to establish severe obstruction

Ratio Decidendi

The applicant failed to provide sufficient evidence demonstrating that the respondents’ bamboo was severely obstructing sunlight to the nominated windows, as required by s 14E(2)(a)(i) of the Act. The majority of shading arose from other trees and the applicant's own building balconies. Accordingly, the jurisdictional threshold was not met and the application was dismissed.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.