Howe & Anor v Jinks & Anor [2012] NSWLEC 1142

Howe & Anor v Jinks & Anor [2012] NSWLEC 1142

The Court lacked jurisdiction under Part 2 because the evidence did not show that the recently planted clumping bamboo was likely within the near future, ordinarily 12 months, to damage the applicants' fence, pipes, path or other property, and any asserted fire risk was not damage caused by the bamboo. The Court also lacked jurisdiction under Part 2A because the applicants conceded that the bamboo did not presently obstruct sunlight or views, and Part 2A requires a current severe obstruction.

Jurisdiction
Australia
Judgment Date
10 May 2012
Procedural Posture
Class 2 Application Under Parts 2 and 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Extemporaneous Decision
Outcome
The applications under Part 2 and Part 2A of the Trees (Disputes Between Neighbours) Act 2006 were dismissed.
Legal Topics
['damage to Property' 'obstruction of Sunlight' 'obstruction of Views' 'bamboo' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'property Law'] ['damage to Property' 'obstruction of Sunlight' 'obstruction of Views' 'bamboo' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Application Under Parts 2 and 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing and Extemporaneous Decision

Legal Issues

  1. 1 ["Whether bamboo on the respondents' land has caused, is causing, or is likely in the near future to cause damage to the applicants' property." "Whether the bamboo is severely obstructing sunlight to a window of a dwelling on the applicants' land." "Whether the bamboo is severely obstructing a view from a dwelling on the applicants' land." 'Whether a risk of fire from bamboo near an external instantaneous gas heater gives the Court jurisdiction under Part 2 of the Act.']

Ratio Decidendi

The Court lacked jurisdiction under Part 2 because the evidence did not show that the recently planted clumping bamboo was likely within the near future, ordinarily 12 months, to damage the applicants' fence, pipes, path or other property, and any asserted fire risk was not damage caused by the bamboo. The Court also lacked jurisdiction under Part 2A because the applicants conceded that the bamboo did not presently obstruct sunlight or views, and Part 2A requires a current severe obstruction.

Court Disposition

The applications under Part 2 and Part 2A of the Trees (Disputes Between Neighbours) Act 2006 were dismissed.

Orders

  • ['The application to remove the trees under Part 2 of the Act is dismissed.' 'The application to remove the trees under Part 2A of the Act is dismissed.']