Cuschieri v Fishburn [2021] NSWLEC 1185

Cuschieri v Fishburn [2021] NSWLEC 1185

The application was refused because the applicant did not establish that the respondents' trees caused the termite damage, dampness, or any significant shed damage, and termite damage caused by insects was outside the relevant tree-damage jurisdiction. The obstruction of sunlight to the applicant's windows was not severe, given the western aspect, small and frosted windows, roof eave, awning and pre-existing tree height, so the Pt 2A jurisdictional threshold was not met.

Jurisdiction
Australia
Judgment Date
14 April 2021
Procedural Posture
Class 2 Trees Dispute Application / Hearing and Final Orders
Outcome
The application is refused.
Legal Topics
['tree Damage' 'termite Damage' 'overshadowing' 'obstruction of Sunlight' 'neighbouring Hedge' 'reasonable Effort to Reach Agreement']
['trees Disputes Between Neighbours' 'land and Environment Court Jurisdiction'] ['tree Damage' 'termite Damage' 'overshadowing' 'obstruction of Sunlight' 'neighbouring Hedge' 'reasonable Effort to Reach Agreement']

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Procedural Posture

Class 2 Trees Dispute Application / Hearing and Final Orders

Legal Issues

  1. 1 ["Whether the respondents' trees caused, were causing, or were likely in the near future to cause damage to the applicant's property under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006." "Whether alleged termite damage to the applicant's dwelling was caused by the respondents' trees." 'Whether dampness and mould from overshadowing justified orders under Pt 2.' 'Whether branches rubbing on a shed roof justified orders under Pt 2.' "Whether the trees severely obstructed sunlight to a window of the applicant's dwelling under Pt 2A."]

Ratio Decidendi

The application was refused because the applicant did not establish that the respondents' trees caused the termite damage, dampness, or any significant shed damage, and termite damage caused by insects was outside the relevant tree-damage jurisdiction. The obstruction of sunlight to the applicant's windows was not severe, given the western aspect, small and frosted windows, roof eave, awning and pre-existing tree height, so the Pt 2A jurisdictional threshold was not met.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.']