Flynn & Anor v Aththas [2017] NSWLEC 1685

Flynn & Anor v Aththas [2017] NSWLEC 1685

The applicants failed to provide sufficient evidence that the respondent's Viburnum trees were, at the time of hearing, severely obstructing sunlight to the relevant windows of their dwelling, as required under s 14E(2)(a)(i) of the Trees Act. Accordingly, the jurisdictional precondition to making an order was not satisfied.

Parties
Applicants: Michael & Carolyn Flynn; Respondent: Michelle Aththas
Jurisdiction
Australia
Judgment Date
29 November 2017
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Decision at First Instance
Outcome
Application dismissed
Legal Topics
Trees and Vegetation Disputes, Obstruction of Sunlight, Neighbour Disputes, Jurisdictional Requirements
Property Law Environmental Law Trees and Vegetation Disputes Obstruction of Sunlight Neighbour Disputes Jurisdictional Requirements

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Parties

Michael & Carolyn Flynn

Applicants

Michelle Aththas

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Decision at First Instance

Legal Issues

  1. 1 Whether the Viburnum trees maintained by the respondent are severely obstructing sunlight to windows of the applicants' dwelling under s 14E(2)(a)(i) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the jurisdictional preconditions to making an order under Part 2A of the Trees Act are satisfied

Ratio Decidendi

The applicants failed to provide sufficient evidence that the respondent's Viburnum trees were, at the time of hearing, severely obstructing sunlight to the relevant windows of their dwelling, as required under s 14E(2)(a)(i) of the Trees Act. Accordingly, the jurisdictional precondition to making an order was not satisfied.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.