O’Neill v McDougall [2017] NSWLEC 1600

O’Neill v McDougall [2017] NSWLEC 1600

Because there was no evidence, such as photographs or an early survey, proving to the extent required by the Trees Act that the bamboo originated on the respondent's land, and the bamboo was substantially more prevalent on the applicant's land, the Court had no jurisdiction to determine the matter and the application had to be dismissed.

Jurisdiction
Australia
Judgment Date
24 October 2017
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / On Site Hearing; Principal Judgment
Outcome
Application dismissed
Legal Topics
['bamboo Allegedly Spreading From Adjoining Land' 'damage to Property' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'substitution of Applicant']
['trees Disputes' 'neighbour Disputes' 'property Damage'] ['bamboo Allegedly Spreading From Adjoining Land' 'damage to Property' 'jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'substitution of Applicant']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / On Site Hearing; Principal Judgment

Legal Issues

  1. 1 ["Whether the bamboo on the applicant's land was a tree to which the Trees (Disputes Between Neighbours) Act 2006 applies situated on adjoining land." "Whether there was sufficient evidence that the bamboo originated on or was substantially on the respondent's land so as to enliven the Court's jurisdiction." 'Whether the application should be dismissed for want of jurisdiction.']

Ratio Decidendi

Because there was no evidence, such as photographs or an early survey, proving to the extent required by the Trees Act that the bamboo originated on the respondent's land, and the bamboo was substantially more prevalent on the applicant's land, the Court had no jurisdiction to determine the matter and the application had to be dismissed.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']