Wright v Jonjil Pty Limited [2016] NSWLEC 1070

Wright v Jonjil Pty Limited [2016] NSWLEC 1070

Although the trees formed a hedge and the applicant had made reasonable efforts to resolve the matter, the applicant did not provide sufficient evidence, such as shadow diagrams or a series of dated and timed photographs, to establish with the certainty required by s 14E(2)(a)(i) which, if any, of the respondent's trees were severely obstructing sunlight to the nominated windows. Consideration of the s 14F matters did not cure that evidentiary deficiency, because other potential sources of shading existed and the extent of sunlight lost because of the respondent's trees was unknown. The Court therefore could not order removal or pruning.

Jurisdiction
Australia
Judgment Date
26 February 2016
Procedural Posture
Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination
Outcome
Application dismissed
Legal Topics
['leyland Cypress Hedge' 'obstruction of Sunlight to Windows' 'severe Obstruction' 'insufficient Evidence' 'neighbouring Land']
['trees Disputes Between Neighbours' 'land and Environment'] ['leyland Cypress Hedge' 'obstruction of Sunlight to Windows' 'severe Obstruction' 'insufficient Evidence' 'neighbouring Land']

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 S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Final Determination

Legal Issues

  1. 1 ['Whether the 18 Leyland Cypress trees were planted so as to form a hedge rising to a height of at least 2.5m under s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicant made a reasonable effort to reach an agreement with the owner of the land on which the trees are situated under s 14E(1)(a).' "Whether the trees were severely obstructing sunlight to windows of the applicant's dwelling under s 14E(2)(a)(i)." "Whether the applicant's interest in having the obstruction removed, remedied or restrained outweighed other matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)." 'Whether the evidence was sufficient to justify orders for removal or pruning of the trees.']

Ratio Decidendi

Although the trees formed a hedge and the applicant had made reasonable efforts to resolve the matter, the applicant did not provide sufficient evidence, such as shadow diagrams or a series of dated and timed photographs, to establish with the certainty required by s 14E(2)(a)(i) which, if any, of the respondent's trees were severely obstructing sunlight to the nominated windows. Consideration of the s 14F matters did not cure that evidentiary deficiency, because other potential sources of shading existed and the extent of sunlight lost because of the respondent's trees was unknown. The Court therefore could not order removal or pruning.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.' 'Exhibit B is returned.']