Kelly v Davies [2022] NSWLEC 1212

Kelly v Davies [2022] NSWLEC 1212

The Court refused the application because the applicant did not establish that the trees were planted so as to form a hedge as required by s 14A(1)(a) of the Trees (Disputes Between Neighbours) Act 2006. The Angophora was probably self-sown and much older than the other trees, the origins of the Melaleuca quinquenervia were not proven, and the three trees differed in age, form and arrangement and did not present as a hedge. Accordingly the Court had no power to make the orders sought. In any event, the Court was not satisfied that the obstruction of sunlight to a window was severe.

Jurisdiction
Australia
Judgment Date
02 June 2022
Procedural Posture
Class 2 Application Under S 14 B of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment After Onsite Hearing
Outcome
The application is refused.
Legal Topics
['trees Disputes Between Neighbours' 'hedges' 'severe Obstruction of Sunlight' 'jurisdictional Requirements Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006' 'reasonable Effort to Reach Agreement']
['environmental Law' 'property Law'] ['trees Disputes Between Neighbours' 'hedges' 'severe Obstruction of Sunlight' 'jurisdictional Requirements Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006' 'reasonable Effort to Reach Agreement']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under S 14 B of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the three trees were planted so as to form a hedge for the purposes of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicant made a reasonable effort to reach agreement with the owners of the land on which the trees were situated under s 14E(1)(a).' "Whether the trees were severely obstructing sunlight to a window of the applicant's dwelling under s 14E(2)(a)(i)."]

Ratio Decidendi

The Court refused the application because the applicant did not establish that the trees were planted so as to form a hedge as required by s 14A(1)(a) of the Trees (Disputes Between Neighbours) Act 2006. The Angophora was probably self-sown and much older than the other trees, the origins of the Melaleuca quinquenervia were not proven, and the three trees differed in age, form and arrangement and did not present as a hedge. Accordingly the Court had no power to make the orders sought. In any event, the Court was not satisfied that the obstruction of sunlight to a window was severe.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.']