On 5 August 2020, the Resource Management and Planning Appeal Tribunal handed down its decision in JM Shepperd v P Clennett [2020] TASRMPAT 18 (Shepperd v Clennett). The decision is the first the Tribunal has made on the merits of a Neighbourhood Disputes About Plants Act 2017 (Tas) (NDAP) application (application), noting that previously only jurisdictional matters of NDAP have been considered. In Shepperd v Clennett the application was dismissed.
Shepperd v Clennett is an important decision as it gives guidance to those seeking to make an application, or those who need to respond to an application, about the operation of NDAP. The decision can be used to gauge how likely it is that an application will be successful and provides insight into what is considered a ‘severe’ obstruction of sunlight or views caused by trees.
The Shepperd v Clennett decision can be accessed here.
The key takeaways of the decision include:
- The first threshold test that needs to be met for the Tribunal to exercise its discretion to grant orders is not one of unreasonableness, but one of severity. Further, the requirement for a plant to cause a severe obstruction is a high threshold. Therefore, one should not make an application only on the basis that it would be reasonable for a plant to be trimmed or removed. Instead, the basis of an application should be that a plant causes a severe obstruction of sunlight or views, and that the same obstruction causes substantial, ongoing or unreasonable interference with the enjoyment of the relevant land.
- Applicants will need to have detailed factual knowledge about the relevant plant, and the interests of both the applicant and respondent.
- Each factor, where relevant, in the NDAP ‘checklist’, which can be accessed here and is detailed in our case commentary that can be downloaded below, will need to be addressed in evidence. This includes any amenity the plant provides the respondent, and the effect on the plant of pruning it if such an order were to be made.
- In order to adequately address the NDAP ‘checklist’, expert witnesses will likely need to be engaged, including: a planning expert; a visual expert; an arborist; and a shadow diagram expert.
For a detailed explanation of the decision, you can access our case commentary by clicking Download below.
If you have any queries or would like further information regarding this article, please contact:
Anthony Spence SC
Principal
M: 0400 545 503
E: aspence@pageseager.com.au
Published: 4 November 2020
