Lo v Ji [2023] NSWLEC 1603

Lo v Ji [2023] NSWLEC 1603

Although the applicants had made a reasonable effort to reach agreement by applying for mediation, the evidence did not satisfy s 10(2) of the Trees Act. The Crepe Myrtle had not damaged or interfered with the applicants' service wires and was unlikely to cause damage or injury in the near future. No evidence showed that trees B, C and D had damaged or were likely to damage the sewer pipe, and the applicants had not experienced sewer service issues. The existing small trees were not shown to be likely to cause damage or physical injury, and Pt 2 did not confer jurisdiction to make orders about trees that might be planted in future. Therefore no orders could be made and the application was...

Jurisdiction
Australia
Judgment Date
26 September 2023
Procedural Posture
Class 2 Pt 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Determination After Onsite Hearing
Outcome
The application is refused.
Legal Topics
['damage Caused by Neighbouring Trees' 'risk of Damage or Injury From Trees' 'jurisdiction Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006' 'reasonable Effort to Reach Agreement']
['trees Disputes Between Neighbours' 'land and Environment Law'] ['damage Caused by Neighbouring Trees' 'risk of Damage or Injury From Trees' 'jurisdiction Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006' 'reasonable Effort to Reach Agreement']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicants made a reasonable effort to reach agreement with the respondent before seeking orders.' "Whether the Crepe Myrtle has caused, is causing, or is likely in the near future to cause damage to the applicants' property or is likely to cause injury to any person." "Whether trees B, C and D have damaged or are likely to damage a sewer pipe near the respondent's western boundary." 'Whether the Court has jurisdiction under Pt 2 of the Trees Act to make orders about trees that may be planted in future.']

Ratio Decidendi

Although the applicants had made a reasonable effort to reach agreement by applying for mediation, the evidence did not satisfy s 10(2) of the Trees Act. The Crepe Myrtle had not damaged or interfered with the applicants' service wires and was unlikely to cause damage or injury in the near future. No evidence showed that trees B, C and D had damaged or were likely to damage the sewer pipe, and the applicants had not experienced sewer service issues. The existing small trees were not shown to be likely to cause damage or physical injury, and Pt 2 did not confer jurisdiction to make orders about trees that might be planted in future. Therefore no orders could be made and the application was...

Court Disposition

The application is refused.

Orders

  • ['The application is refused.' 'The exhibits are returned, other than Exhibit A.']