Barnett v Bayliss & anor [2014] NSWLEC 1011

Barnett v Bayliss & anor [2014] NSWLEC 1011

The Court's Part 2 jurisdiction was engaged because roots from some of the respondents' Leyland Cypress trees caused displacement of the applicant's pavers creating damage and a trip hazard, and tree 16 and a low branch on tree 14 presented sufficient concerns to justify limited intervention. However, the evidence did not justify wholesale removal or major pruning, nor orders based on leaf litter, mould, fence condition, footings, or fire risk. The Part 2A application failed because obstruction to the garden was outside Part 2A, severe obstruction to windows W2 and W3 was not proved, and although severe obstruction to W1 was assumed at its highest, the discretionary balancing under s...

Jurisdiction
Australia
Judgment Date
30 January 2014
Procedural Posture
Class 2 Application Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Part 2A application dismissed; Part 2 application upheld in part.
Legal Topics
['damage to Property From Tree Roots' 'risk of Injury From Trees' 'hedge Obstruction of Sunlight' 'discretionary Matters in Tree Orders']
['trees Disputes Between Neighbours' 'property' 'land and Environment'] ['damage to Property From Tree Roots' 'risk of Injury From Trees' 'hedge Obstruction of Sunlight' 'discretionary Matters in Tree Orders']

Case Brief

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Procedural Posture

Class 2 Application Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the respondents' Leyland Cypress trees had caused, were causing, or were likely in the near future to cause damage to the applicant's property or injury to any person under Part 2 of the Trees (Disputes Between Neighbours) Act 2006." 'Whether leaf litter, blocked gutters and mould justified orders for removal or pruning of the trees.' 'Whether roots from the trees caused damage to paving, the dividing fence, or potential damage to house footings.' "Whether any tree or branch posed a sufficient risk of damage to the applicant's roof." "Whether the row of trees formed a hedge and severely obstructed sunlight to windows of the applicant's dwelling under Part 2A of the Trees (Disputes Between Neighbours) Act 2006." "Whether the applicant's interest in removal or pruning of sunlight obstruction outweighed discretionary matters suggesting the undesirability of interfering with the trees."]

Ratio Decidendi

The Court's Part 2 jurisdiction was engaged because roots from some of the respondents' Leyland Cypress trees caused displacement of the applicant's pavers creating damage and a trip hazard, and tree 16 and a low branch on tree 14 presented sufficient concerns to justify limited intervention. However, the evidence did not justify wholesale removal or major pruning, nor orders based on leaf litter, mould, fence condition, footings, or fire risk. The Part 2A application failed because obstruction to the garden was outside Part 2A, severe obstruction to windows W2 and W3 was not proved, and although severe obstruction to W1 was assumed at its highest, the discretionary balancing under s...

Court Disposition

Part 2A application dismissed; Part 2 application upheld in part.

Orders

  • ['The Part 2A application is dismissed.' 'The Part 2 application is upheld in part.' 'By 7 March 2014, the respondents are to engage and pay for an AQF level 3 arborist to remove tree 16 to ground level and to remove the low hanging branch on tree 14.' 'The work in order (3) is to be carried out in accordance with...