De Lyall & anor v Dann & anor [2017] NSWLEC 1190

De Lyall & anor v Dann & anor [2017] NSWLEC 1190

Although the trees satisfied the preliminary hedge and adjoining land requirements, the Court was not satisfied that they severely obstructed sunlight to any nominated windows or severely obstructed views from the applicants' dwelling. The sunlight impact was confined mainly to early morning and other elements of the applicants' dwelling and fencing also contributed to shading. The view impact was assessed as minor/moderate rather than severe, having regard to the totality of the views, the distant and partly pre-existing nature of the affected view, and the trees' established height when the dwelling was constructed. The jurisdictional threshold in s 14E(2) was therefore not met and the...

Jurisdiction
Australia
Judgment Date
11 April 2017
Procedural Posture
Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 for Orders Concerning a Hedge / Principal Judgment
Outcome
Application dismissed
Legal Topics
['hedge Obstruction of Sunlight' 'hedge Obstruction of Views' 'jurisdiction Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006' 'view Sharing' 'solar Access']
['trees Disputes' 'neighbours' 'land and Environment' 'property'] ['hedge Obstruction of Sunlight' 'hedge Obstruction of Views' 'jurisdiction Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006' 'view Sharing' 'solar Access']

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Procedural Posture

Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 for Orders Concerning a Hedge / Principal Judgment

Legal Issues

  1. 1 ['Whether the row of Leyland Cypress trees was a hedge on adjoining land to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.' "Whether the trees were severely obstructing sunlight to windows of the applicants' dwelling." "Whether the trees were severely obstructing views from the applicants' dwelling." 'Whether the severity and nature of any obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the trees.']

Ratio Decidendi

Although the trees satisfied the preliminary hedge and adjoining land requirements, the Court was not satisfied that they severely obstructed sunlight to any nominated windows or severely obstructed views from the applicants' dwelling. The sunlight impact was confined mainly to early morning and other elements of the applicants' dwelling and fencing also contributed to shading. The view impact was assessed as minor/moderate rather than severe, having regard to the totality of the views, the distant and partly pre-existing nature of the affected view, and the trees' established height when the dwelling was constructed. The jurisdictional threshold in s 14E(2) was therefore not met and the...

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.' 'All exhibits except A are returned.']