Bartlewicz v O'Donnell [2011] NSWLEC 1278

Bartlewicz v O'Donnell [2011] NSWLEC 1278

The Court dismissed the application because it was not satisfied on the evidence that the hedge severely obstructed sunlight to the applicant's windows. Even if some sunlight had previously reached the windows before the hedge attained its current height, the principal obstructions were the height of the fence and retaining wall, the down-slope location of the applicant's dwelling, the narrow gap between guttering and fence, the width of the eaves, and the oblique angle of the dwelling to the path of the sun. In any event, most nominated windows were not living-room windows and the dining room was only used occasionally, so the balancing requirement for intervention was not met.

Jurisdiction
Australia
Judgment Date
28 September 2011
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a Hedge Allegedly Obstructing Sunlight / Principal Judgment After on Site Hearing
Outcome
Application dismissed
Legal Topics
['hedge' 'obstruction to Sunlight' "neighbours' Trees" 'pruning Orders']
['land and Environment' 'tree Disputes Between Neighbours'] ['hedge' 'obstruction to Sunlight' "neighbours' Trees" 'pruning Orders']

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a Hedge Allegedly Obstructing Sunlight / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the row of Photinia glabra 'Super Bronze' satisfied the jurisdictional requirements for a hedge under s 14A of the Trees (Disputes Between Neighbours) Act 2006." "Whether the trees were severely obstructing sunlight to windows of the applicant's dwelling within s 14E(2)(a)(i)." "Whether the severity and nature of any obstruction made the applicant's interest in intervention outweigh matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)."]

Ratio Decidendi

The Court dismissed the application because it was not satisfied on the evidence that the hedge severely obstructed sunlight to the applicant's windows. Even if some sunlight had previously reached the windows before the hedge attained its current height, the principal obstructions were the height of the fence and retaining wall, the down-slope location of the applicant's dwelling, the narrow gap between guttering and fence, the width of the eaves, and the oblique angle of the dwelling to the path of the sun. In any event, most nominated windows were not living-room windows and the dining room was only used occasionally, so the balancing requirement for intervention was not met.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']