Hall & anor v Bezzina [2016] NSWLEC 1539

Hall & anor v Bezzina [2016] NSWLEC 1539

Although the Court was prepared to make a preliminary finding that the respondent's trees severely obstructed sunlight to the applicants' windows for at least some part of the year, the applicants did not satisfy s 14E(2)(b). The requested removal or radical pruning was unreasonable, would be detrimental to the trees, and would significantly reduce the respondent's privacy. There was also insufficient evidence, particularly no shadow diagrams, to quantify the trees' actual contribution to obstruction of the ground floor windows or to distinguish it from other likely obstructions. The application was therefore dismissed.

Jurisdiction
Australia
Judgment Date
15 November 2016
Procedural Posture
Class 1 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a Hedge Alleged to Obstruct Sunlight / Final Determination; Principal Judgment
Outcome
Application dismissed
Legal Topics
['hedge Obstruction of Sunlight' 'privacy' 'pruning or Removal of Trees' 'severe Obstruction Under Part 2 A' 'insufficient Evidence of Causation']
['trees Disputes' 'neighbour Disputes' 'property Law'] ['hedge Obstruction of Sunlight' 'privacy' 'pruning or Removal of Trees' 'severe Obstruction Under Part 2 A' 'insufficient Evidence of Causation']

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Procedural Posture

Class 1 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a Hedge Alleged to Obstruct Sunlight / Final Determination; Principal Judgment

Legal Issues

  1. 1 ['Whether the row of Leyland Cypress trees were trees to which Part 2A applied because they were planted and maintained as a hedge.' "Whether the trees severely obstructed sunlight to windows of the applicants' dwelling within s 14E(2)(a)(i)." "Whether the severity and nature of any obstruction meant the applicants' interest in removal or pruning outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)." "Whether the applicants had provided sufficient evidence to distinguish the trees' impact from other potential causes of obstruction, including the fence, surrounding dwellings, other vegetation and self-shading."]

Ratio Decidendi

Although the Court was prepared to make a preliminary finding that the respondent's trees severely obstructed sunlight to the applicants' windows for at least some part of the year, the applicants did not satisfy s 14E(2)(b). The requested removal or radical pruning was unreasonable, would be detrimental to the trees, and would significantly reduce the respondent's privacy. There was also insufficient evidence, particularly no shadow diagrams, to quantify the trees' actual contribution to obstruction of the ground floor windows or to distinguish it from other likely obstructions. The application was therefore dismissed.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']