Ardagh v Ellston [2012] NSWLEC 1235

Ardagh v Ellston [2012] NSWLEC 1235

The application was dismissed except in relation to the removal of two Fig trees (Trees 4 and 5), which, being within one metre of the boundary, could in the near future cause damage to the dividing fence; there was insufficient evidence of current or imminent damage to other property elements or of a severe obstruction of sunlight or views within the meaning of the Act.

Parties
Applicant: Mr Robert Ardagh; Respondent: Mr Harry Peter Ellston
Jurisdiction
Australia
Judgment Date
23 August 2012
Procedural Posture
Tree Disputes (class 2) / Final Judgment
Outcome
Partially granted (removal of two trees); otherwise dismissed
Legal Topics
Tree Disputes, Damage to Property, Obstruction of Sunlight, Obstruction of Views, Neighbour Disputes
Property Law Environmental Law Tree Disputes Damage to Property Obstruction of Sunlight Obstruction of Views Neighbour Disputes

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Parties

Mr Robert Ardagh

Applicant

Mr Harry Peter Ellston

Respondent

Procedural Posture

Tree Disputes (class 2) / Final Judgment

Legal Issues

  1. 1 Whether roots from Ficus trees have caused or are likely to cause damage to applicant's property
  2. 2 Whether Ficus trees constitute a hedge for the purpose of Part 2A of the Trees (Disputes Between Neighbours) Act 2006
  3. 3 Whether the trees severely obstruct sunlight to windows or views from the applicant's dwelling in contravention of the Act

Ratio Decidendi

The application was dismissed except in relation to the removal of two Fig trees (Trees 4 and 5), which, being within one metre of the boundary, could in the near future cause damage to the dividing fence; there was insufficient evidence of current or imminent damage to other property elements or of a severe obstruction of sunlight or views within the meaning of the Act.

Court Disposition

Partially granted (removal of two trees); otherwise dismissed

Orders

  • Application to remove 5 of the 7 trees is dismissed.
  • Application for rectification is dismissed.