Smith v Ivanhoe [2023] NSWLEC 1807

Smith v Ivanhoe [2023] NSWLEC 1807

Although the bamboo satisfied the hedge requirement in s 14A(1) and the application requirements were met, the Court was not satisfied that the bamboo severely obstructed sunlight to any nominated window of the Applicants' dwelling. The primary causes of sunlight obstruction were the Respondent's Celtis sinensis, the north side neighbour's vegetation, structures, slope, aspect, and the lower level of the Applicants' land. Because s 14E(2)(a)(i) was not satisfied, the Court had no power to make orders under Pt 2A and the application was refused.

Jurisdiction
Australia
Judgment Date
11 December 2023
Procedural Posture
Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Severe Obstruction of Sunlight by a High Hedge / Final Hearing and Extemporaneous Decision
Outcome
Application refused.
Legal Topics
['high Hedges' 'severe Obstruction of Sunlight to Windows' 'jurisdictional Requirements Under Pt 2 A' 'urban Tree Debris and Mould']
['trees Disputes Between Neighbours' 'environmental and Planning Law'] ['high Hedges' 'severe Obstruction of Sunlight to Windows' 'jurisdictional Requirements Under Pt 2 A' 'urban Tree Debris and Mould']

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Procedural Posture

Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Severe Obstruction of Sunlight by a High Hedge / Final Hearing and Extemporaneous Decision

Legal Issues

  1. 1 ['Whether the bamboo formed a hedge for the purpose of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Applicants made reasonable efforts to reach agreement and gave required notice under ss 14C and 14E(1).' "Whether the Respondent's bamboo severely obstructed sunlight to a window of the Applicants' dwelling within s 14E(2)(a)(i)." 'Whether the Court had power to make orders under Pt 2A of the Act.']

Ratio Decidendi

Although the bamboo satisfied the hedge requirement in s 14A(1) and the application requirements were met, the Court was not satisfied that the bamboo severely obstructed sunlight to any nominated window of the Applicants' dwelling. The primary causes of sunlight obstruction were the Respondent's Celtis sinensis, the north side neighbour's vegetation, structures, slope, aspect, and the lower level of the Applicants' land. Because s 14E(2)(a)(i) was not satisfied, the Court had no power to make orders under Pt 2A and the application was refused.

Court Disposition

Application refused.

Orders

  • ['The application is refused.']