Hitchenson v Collins [2022] NSWLEC 1494

Hitchenson v Collins [2022] NSWLEC 1494

Although the Applicants had made a reasonable effort to reach agreement, the evidence did not establish that the frangipani had damaged the current boundary fence or that it was likely to damage the fence in the near future; photographs showed sufficient clearance between the tree and the fence, and the tree was also unlikely to cause injury. The Court therefore had no jurisdiction to make orders under Pt 2 and refused the application.

Jurisdiction
Australia
Judgment Date
16 September 2022
Procedural Posture
Class 2 Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment
Outcome
Application refused.
Legal Topics
['neighbouring Tree' 'damage to Boundary Fence' 'risk of Injury' 'pool Fence' 'jurisdiction to Make Orders']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['neighbouring Tree' 'damage to Boundary Fence' 'risk of Injury' 'pool Fence' 'jurisdiction to Make Orders']

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Procedural Posture

Class 2 Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ['Whether the Applicants made a reasonable effort to reach agreement with the owner of the land on which the tree is situated.' "Whether the frangipani tree has caused, is causing, or is likely in the near future to cause damage to the Applicants' property." 'Whether the frangipani tree is likely to cause injury to any person.' 'Whether the Court had jurisdiction to make the orders sought.']

Ratio Decidendi

Although the Applicants had made a reasonable effort to reach agreement, the evidence did not establish that the frangipani had damaged the current boundary fence or that it was likely to damage the fence in the near future; photographs showed sufficient clearance between the tree and the fence, and the tree was also unlikely to cause injury. The Court therefore had no jurisdiction to make orders under Pt 2 and refused the application.

Court Disposition

Application refused.

Orders

  • ['The application is refused.']