Britten v Smith [2024] NSWLEC 1458

Britten v Smith [2024] NSWLEC 1458

Although the bamboo formed a hedge and sunlight to the nominated windows was obstructed, the Court was not satisfied that the hedge caused a severe obstruction of sunlight for the purposes of s 14E(2)(a). The hedge was already well established when the applicants occupied their new dwelling in mid-2023, any change in obstruction since then was only marginal, W1 was in a separate outdoor toilet and not a window of a dwelling, and W2 was significantly obstructed by the applicants' own carport roof. Because s 14E(2)(a) was not satisfied, the Court had no power to make the orders sought and the application was refused.

Jurisdiction
Australia
Judgment Date
28 March 2024
Procedural Posture
Class 2 Tree Dispute Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Orders
Outcome
Application refused.
Legal Topics
['high Hedges' 'severe Obstruction of Sunlight' 'jurisdictional Requirements Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'overhanging Foliage and Tree Debris']
['land and Environment' 'tree Disputes Between Neighbours'] ['high Hedges' 'severe Obstruction of Sunlight' 'jurisdictional Requirements Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'overhanging Foliage and Tree Debris']

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Procedural Posture

Class 2 Tree Dispute Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Orders

Legal Issues

  1. 1 ['Whether the bamboo formed a hedge to which Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.' 'Whether the applicants made reasonable efforts to reach agreement and gave required notice.' "Whether the bamboo severely obstructed sunlight to a window of a dwelling on the applicants' land." "Whether obstruction was caused by the hedge or by other factors, including the applicants' carport roof and the fact that the hedge existed before occupation of the new dwelling." 'Whether the Court had power to make the pruning and maintenance orders sought.']

Ratio Decidendi

Although the bamboo formed a hedge and sunlight to the nominated windows was obstructed, the Court was not satisfied that the hedge caused a severe obstruction of sunlight for the purposes of s 14E(2)(a). The hedge was already well established when the applicants occupied their new dwelling in mid-2023, any change in obstruction since then was only marginal, W1 was in a separate outdoor toilet and not a window of a dwelling, and W2 was significantly obstructed by the applicants' own carport roof. Because s 14E(2)(a) was not satisfied, the Court had no power to make the orders sought and the application was refused.

Court Disposition

Application refused.

Orders

  • ['The application is refused.']