Wesiak v DA [2023] NSWLEC 1063

Wesiak v DA [2023] NSWLEC 1063

Although the applicant made a reasonable effort to reach agreement and gave the required notice, Pt 2A did not empower the Court to make orders about sunlight to the garage, courtyard or clothesline. The relevant dining room window received sunlight for about four of the six hours between 9am and 3pm in winter, so the obstruction caused by the hedge was not severe. In any event, the trees' ecological, privacy, landscaping and amenity contributions, the likely adverse impact of the requested pruning, and uncertainty about other sources of shadow meant the statutory requirements for orders were not satisfied.

Jurisdiction
Australia
Judgment Date
15 February 2023
Procedural Posture
Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning High Hedges / Final Hearing and Principal Judgment
Outcome
The application was refused.
Legal Topics
['high Hedges' 'severe Obstruction of Sunlight' 'sunlight to a Window of a Dwelling' 'reasonable Effort to Reach Agreement' 'tree Pruning and Removal Orders']
['trees Disputes Between Neighbours' 'land and Environment'] ['high Hedges' 'severe Obstruction of Sunlight' 'sunlight to a Window of a Dwelling' 'reasonable Effort to Reach Agreement' 'tree Pruning and Removal Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning High Hedges / Final Hearing and Principal Judgment

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the owners of the land on which the trees are situated.' 'Whether the Court had power under Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 to make orders concerning sunlight to a garage, courtyard or clothesline.' "Whether the Magnolia hedge severely obstructed sunlight to a window of the applicant's 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 applicant made a reasonable effort to reach agreement and gave the required notice, Pt 2A did not empower the Court to make orders about sunlight to the garage, courtyard or clothesline. The relevant dining room window received sunlight for about four of the six hours between 9am and 3pm in winter, so the obstruction caused by the hedge was not severe. In any event, the trees' ecological, privacy, landscaping and amenity contributions, the likely adverse impact of the requested pruning, and uncertainty about other sources of shadow meant the statutory requirements for orders were not satisfied.

Court Disposition

The application was refused.

Orders

  • ['The application is refused.']