Levett & anor v Murray & anor; Levett & anor v Lyndall Jane Makin and Michelle Toni Le Mesurier as administrators for the Estate of Marcia Catherine Hinkley [2016] NSWLEC 1012

Levett & anor v Murray & anor; Levett & anor v Lyndall Jane Makin and Michelle Toni Le Mesurier as administrators for the Estate of Marcia Catherine Hinkley [2016] NSWLEC 1012

While the trees were determined to severely obstruct sunlight to some windows, the evidence established the obstructed sunlight in most windows existed when the applicants purchased/built their dwelling, and further, the applicants’ interests in gaining additional sunlight from reduction did not outweigh the detrimental impacts to the trees’ health, landscape amenity, and privacy, nor overcome the lack of compelling current shadow evidence. On balance, jurisdictional and discretionary requirements for orders under Part 2A of the Trees Act were not met; both applications dismissed.

Jurisdiction
Australia
Judgment Date
15 January 2016
Procedural Posture
Class 2 Proceeding (trees (disputes Between Neighbours) Act 2006 Application) / Judgment After Hearing
Outcome
Applications dismissed
Legal Topics
['trees and Hedges Disputes' 'obstruction of Sunlight' 'disputes Between Neighbours']
['environmental Law' 'property Law'] ['trees and Hedges Disputes' 'obstruction of Sunlight' 'disputes Between Neighbours']

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Procedural Posture

Class 2 Proceeding (trees (disputes Between Neighbours) Act 2006 Application) / Judgment After Hearing

Legal Issues

  1. 1 ["Whether Cupressus torulosa (Bhutan Cypress) trees and conifers on adjoining properties severely obstruct sunlight to the applicants' dwelling windows under Part 2A of the Trees (Disputes Between Neighbours) Act 2006" 'Whether balancing of interests under s 14E(2)(b) and matters in s 14F of the Trees Act favour making orders for pruning/reduction of the trees']

Ratio Decidendi

While the trees were determined to severely obstruct sunlight to some windows, the evidence established the obstructed sunlight in most windows existed when the applicants purchased/built their dwelling, and further, the applicants’ interests in gaining additional sunlight from reduction did not outweigh the detrimental impacts to the trees’ health, landscape amenity, and privacy, nor overcome the lack of compelling current shadow evidence. On balance, jurisdictional and discretionary requirements for orders under Part 2A of the Trees Act were not met; both applications dismissed.

Court Disposition

Applications dismissed

Orders

  • ['The application in matter 20918 of 2015 (Levett v Murray) is dismissed.' 'The application in matter 20919 of 2015 (Levett v Makin & Le Mesurier for the Estate of Hinkley) is dismissed.']