Cook & anor v Howard & anor; Kyriakides & anor v Howard & anor [2013] NSWLEC 1135

Cook & anor v Howard & anor; Kyriakides & anor v Howard & anor [2013] NSWLEC 1135

The Court dismissed the applications as the relevant jurisdictional tests under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 were not satisfied: the group of Eucalypts and Angophoras were not a planted hedge, the Chinese Elm was a single tree and not part of a hedge, and at the time of the hearing the Fiddlewoods and Lillypillies did not severely obstruct sunlight or views due to recent pruning. The Act requires the obstruction to be current and severe for the Court to have jurisdiction to make orders.

Parties
Applicant: W & L Cook; Applicant: C & C Kyriakides; Respondent: T & M Howard
Jurisdiction
Australia
Judgment Date
23 July 2013
Procedural Posture
Class 2 / Hearing and Final Decision
Outcome
Applications dismissed
Legal Topics
Trees (disputes Between Neighbours) Act 2006, Obstruction of Views, Obstruction of Sunlight, Jurisdictional Tests, Hedges
Environmental Law Trees (disputes Between Neighbours) Act 2006 Obstruction of Views Obstruction of Sunlight Jurisdictional Tests Hedges

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Parties

W & L Cook

Applicant

C & C Kyriakides

Applicant

T & M Howard

Respondent

Procedural Posture

Class 2 / Hearing and Final Decision

Legal Issues

  1. 1 Does Part 2A of the Trees (Disputes Between Neighbours) Act 2006 apply to the trees in question?
  2. 2 Are the trees severely obstructing sunlight or views at the time of the hearing, satisfying s 14E(2)?

Ratio Decidendi

The Court dismissed the applications as the relevant jurisdictional tests under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 were not satisfied: the group of Eucalypts and Angophoras were not a planted hedge, the Chinese Elm was a single tree and not part of a hedge, and at the time of the hearing the Fiddlewoods and Lillypillies did not severely obstruct sunlight or views due to recent pruning. The Act requires the obstruction to be current and severe for the Court to have jurisdiction to make orders.

Court Disposition

Applications dismissed

Orders

  • Appeal 20308 of 2013 is dismissed.
  • Appeal 20309 of 2013 is dismissed.