Johnston v Arndell [2011] NSWLEC 1212

Johnston v Arndell [2011] NSWLEC 1212

The risk of eye injury from the palm fronds was unlikely and improbable, no relevant damage had been caused or was likely, and the tests in s 10(2) were not satisfied. Although the Court was content to treat the five trees as forming a hedge, the evidence did not establish severe obstruction of sunlight to the relevant windows, so s 14E(2)(a)(i) was not satisfied. The Court therefore had no jurisdiction to make orders under either Part 2 or Part 2A, and the application was dismissed.

Jurisdiction
Australia
Judgment Date
20 July 2011
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination
Outcome
Application dismissed
Legal Topics
['potential Injury to Persons From Trees' 'hedge Obstruction of Sunlight' 'jurisdiction to Make Tree Orders']
['trees Disputes Between Neighbours' 'land and Environment Court'] ['potential Injury to Persons From Trees' 'hedge Obstruction of Sunlight' 'jurisdiction to Make Tree Orders']

Case Brief

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination

Legal Issues

  1. 1 ["Whether trees were likely in the near future to cause damage to the applicant's property or likely to cause injury to any person under s 10(2)." 'Whether the trees formed a hedge for the purpose of s 14A(1).' "Whether the trees were severely obstructing sunlight to windows of the applicant's dwelling under s 14E(2)(a)(i)." 'Whether the Court had jurisdiction to make orders for pruning or height reduction of the trees.']

Ratio Decidendi

The risk of eye injury from the palm fronds was unlikely and improbable, no relevant damage had been caused or was likely, and the tests in s 10(2) were not satisfied. Although the Court was content to treat the five trees as forming a hedge, the evidence did not establish severe obstruction of sunlight to the relevant windows, so s 14E(2)(a)(i) was not satisfied. The Court therefore had no jurisdiction to make orders under either Part 2 or Part 2A, and the application was dismissed.

Court Disposition

Application dismissed

Orders

  • ['The application in its entirety is dismissed.']