O’Connor v Kerr [2015] NSWLEC 1285

O’Connor v Kerr [2015] NSWLEC 1285

The Part 2 application failed because none of the s 10(2) jurisdictional tests was met: injury was not pressed, the alleged damage was either not damage to the applicant's property, was merely cosmetic and insufficient, or was not shown to be likely in the near future, and the arboricultural evidence was that the newly planted Ornamental Pears were highly unlikely to cause relevant damage within 12 months. The Part 2A application failed because, although the Pear trees could be treated as a hedge for Part 2A, the trees were not severely obstructing sunlight to any windows of the applicant's dwelling at the time required by the Act.

Jurisdiction
Australia
Judgment Date
29 July 2015
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination
Outcome
Application dismissed
Legal Topics
['future Damage by Trees' 'obstruction of Sunlight by Hedge' 'jurisdictional Tests Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['future Damage by Trees' 'obstruction of Sunlight by Hedge' 'jurisdictional Tests Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006']

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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 the trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the trees were likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Ornamental Pear trees were trees to which Part 2A applies because they were planted so as to form a hedge and rose to a height of at least 2.5m.' "Whether the trees were severely obstructing sunlight to a window of a dwelling on the applicant's land under s 14E(2) of the Trees (Disputes Between Neighbours) Act 2006."]

Ratio Decidendi

The Part 2 application failed because none of the s 10(2) jurisdictional tests was met: injury was not pressed, the alleged damage was either not damage to the applicant's property, was merely cosmetic and insufficient, or was not shown to be likely in the near future, and the arboricultural evidence was that the newly planted Ornamental Pears were highly unlikely to cause relevant damage within 12 months. The Part 2A application failed because, although the Pear trees could be treated as a hedge for Part 2A, the trees were not severely obstructing sunlight to any windows of the applicant's dwelling at the time required by the Act.

Court Disposition

Application dismissed

Orders

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