Doyle v Tu [2023] NSWLEC 1535

Doyle v Tu [2023] NSWLEC 1535

Although the Cypress trees formed a hedge and the applicant had made a reasonable effort to reach agreement, the hedge did not severely obstruct sunlight to windows of the applicant's dwelling, so Pt 2A jurisdiction to make orders was not engaged. Under Pt 2, the applicant did not prove on the balance of probabilities that the trees caused damage to the former fence, were likely in the near future to damage the retaining wall, could found a claim for damage to the Sydney Water sewer main, or created relevant injury or damage risk. Because s 10(2)(a) was not satisfied, the Court had no power to make the tree or fencing orders sought.

Jurisdiction
Australia
Judgment Date
15 September 2023
Procedural Posture
Class 2 Trees Dispute Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
The application is refused.
Legal Topics
['high Hedges' 'obstruction of Sunlight to Dwelling Windows' 'tree Damage to Property' 'boundary Fence' 'retaining Wall' 'tree Roots' 'privacy and Amenity']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment'] ['high Hedges' 'obstruction of Sunlight to Dwelling Windows' 'tree Damage to Property' 'boundary Fence' 'retaining Wall' 'tree Roots' 'privacy and Amenity']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Leyland Cypress trees formed a hedge for the purposes of Pt 2A of the Trees (Disputes between Neighbours) Act 2006.' "Whether the hedge severely obstructed sunlight to a window of the applicant's dwelling under s 14E(2)(a)(i) of the Trees (Disputes between Neighbours) Act 2006." "Whether the trees caused, were causing, or were likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006." 'Whether alleged damage to a Sydney Water sewer main could found orders under the Trees (Disputes between Neighbours) Act 2006.' 'Whether the Court had power to make fencing orders under s 13A of the Dividing Fences Act, 1991.']

Ratio Decidendi

Although the Cypress trees formed a hedge and the applicant had made a reasonable effort to reach agreement, the hedge did not severely obstruct sunlight to windows of the applicant's dwelling, so Pt 2A jurisdiction to make orders was not engaged. Under Pt 2, the applicant did not prove on the balance of probabilities that the trees caused damage to the former fence, were likely in the near future to damage the retaining wall, could found a claim for damage to the Sydney Water sewer main, or created relevant injury or damage risk. Because s 10(2)(a) was not satisfied, the Court had no power to make the tree or fencing orders sought.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.']