Pham v Papaioannou [2011] NSWLEC 1044

Pham v Papaioannou [2011] NSWLEC 1044

The seven Lillypilly trees formed a hedge within s 14A(1). The Court was not satisfied that they severely obstructed sunlight to windows W1 or W2, including because only Trees T4 to T7 could potentially affect those windows and reasonable sunlight would remain available. The Court was satisfied that Trees T4 to T7...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 February 2011
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing and Site Inspection
Outcome
Application upheld, in part.
Legal Topics
['tree Disputes Between Neighbours' 'hedges' 'obstruction of Sunlight to a Window' 'obstruction of Views From a Dwelling' 'pruning Orders']
['environment and Planning' 'property Law'] ['tree Disputes Between Neighbours' 'hedges' 'obstruction of Sunlight to a Window' 'obstruction of Views From a Dwelling' 'pruning Orders']

Source-derived case record

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing and Site Inspection

Legal Issues

  1. 1 ['Whether seven Lillypilly trees on adjoining land formed a hedge to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.' "Whether the trees severely obstructed sunlight to windows W1 or W2 of the applicant's dwelling." "Whether the trees severely obstructed a view from the applicant's dwelling towards the Pacific Ocean." "Whether the applicant's interest in remedying the obstruction outweighed matters suggesting the undesirability of interfering with the trees." 'What pruning and maintenance orders, if any, should be made and who should pay for the work.']

Ratio Decidendi

The seven Lillypilly trees formed a hedge within s 14A(1). The Court was not satisfied that they severely obstructed sunlight to windows W1 or W2, including because only Trees T4 to T7 could potentially affect those windows and reasonable sunlight would remain available. The Court was satisfied that Trees T4 to T7 severely obstructed a view from the applicant's dwelling, because they obstructed the view from window W1 towards the Pacific Ocean, and that pruning to 500 mm above the colour bond fence, or 1.6 m above the adjoining path level, appropriately balanced restoration of views with the respondents' privacy. Orders preventing future planting were outside the Act and orders binding...

Court Disposition

Application upheld, in part.

Orders

  • ['The application is upheld, in part.' 'The respondents to engage and pay for an AQF Level 3 arborist or horticulturist to prune Trees T4 to T7 to a level where they can be maintained at a height of no more than 500 mm above the height of the colour bond fence or 1.6 m above the level of the path adjoining the fence...