Land and Environment Court
New South Wales
Medium Neutral Citation: Nolen & anor v Balodis & anor [2016] NSWLEC 1119 Hearing dates: 5 April 2016 Date of orders: 05 April 2016 Decision date: 05 April 2016 Jurisdiction: Class 2 Before: Fakes C Decision: 1. The application in its entirety is dismissed.
Catchwords: TREES [NEIGHBOURS] Potential damage to property; debris; mould; Hedge – obstruction of sunlight and views; similar obstruction at time applicants purchased property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Clancy v Bell [2010] NSWLEC 1351
Drewett v Best [2010] NSWLEC 1305
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
McDougall v Philip [2011] NSWLEC 1280
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140Category: Principal judgment Parties: Glenn Nolen and Linda Ross (Applicants)
Nicole Balodis and Evan Guyatt (Respondents)Representation: Applicants: G. Nolen and L Ross (Litigants in person)
Respondents: N Balodis and E Guyatt (Litigants in person)
File Number(s): 20049 of 2016
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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COMMISSIONER: The applicants own a property in Summer Hill. They have applied under s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of Platycladus orientalis (Bookleaf Cypress) trees growing along the rear side boundary of the adjoining property.
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The respondents do not wish to remove the trees as they value them for the contribution they make to the amenity of their back garden and the screening they will provide from a nearby recently approved 4 storey building to the south-east.
Part 2 Application
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Section 7, Part 2 of the Act enables an owner (or occupier) of land to apply to the Court for an order to remedy restrain or prevent damage to property on an applicant’s land or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land.
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The trees are three mature Bookleaf Cypress; I note that the application claim form and accompanying letters state that there are seven or eight trees. The three trees were present when the respondents purchased their property in 2010. They are growing along the south-western boundary of their property close to the dividing fence between the parties’ properties. The parties’ semi-detached dwellings are part of a row of similar cottages. The applicants purchased their property in April 2013. According to the respondents’ evidence (Exhibit 1), following a request from the applicants to prune the trees, in January/ February 2015 the respondents crown-lifted the trees by removing a number of lower and overhanging branches. It appears that this did not satisfy the applicants who then requested the trees be removed.
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In their application…
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- AGLC
- Nolen v Balodis [2016] NSWLEC 1119
- Case
- [2016] NSWLEC 1119
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the plaintiff had established a valid and enforceable claim against the defendant for the unpaid debt. This involved examining the terms of the loan agreement, the evidence of the debt, and any applicable defenses raised by the defendant. Additionally, the court had to consider whether the plaintiff had provided sufficient evidence to support his claim and whether any procedural requirements had been met in lodging the application.
In its judgment, the court found that the plaintiff had not discharged the onus of proving the existence of the debt and the defendant's liability. The evidence provided was deemed insufficient to establish the amount owed or the terms under which the debt was incurred. The court highlighted that the plaintiff's application lacked the necessary particulars and documentary evidence to substantiate the claim. Consequently, the application was dismissed in its entirety, with the court ruling that the plaintiff had not met the legal standards required to secure a declaration of liability against the defendant.
Orders
Orders of the court
1. The application in its entirety is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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