Lutze v Graham & anor [2012] NSWLEC 1075

Lutze v Graham & anor [2012] NSWLEC 1075

The application failed because the sunlight issue was not a current problem, so s 14E(2)(a)(i) was not satisfied. As to views, even if the narrow corridor view to Pittwater were severely obstructed, the discretionary balancing under s 14E(2)(b) did not favour the applicant because the desired view was very distant, other trees beyond the respondents' property severely limited the view, pruning would provide negligible relief, and the applicant had extensive other views from the property. Accordingly s 14E(2) was not satisfied and no orders could be made.

Jurisdiction
Australia
Judgment Date
27 March 2012
Procedural Posture
Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 for Pruning of Trees / Final Hearing and Extemporaneous Decision
Outcome
Application for pruning dismissed
Legal Topics
['hedge' 'pruning' 'obstruction of Sunlight' 'obstruction of Views' 'view Sharing' 'balancing of Interests Under S 14 E(2)(b)']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['hedge' 'pruning' 'obstruction of Sunlight' 'obstruction of Views' 'view Sharing' 'balancing of Interests Under S 14 E(2)(b)']

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Procedural Posture

Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 for Pruning of Trees / Final Hearing and Extemporaneous Decision

Legal Issues

  1. 1 ["Whether the row of Leyland Cypress trees severely obstructed sunlight to a window of the applicant's dwelling within s 14E(2)(a)(i) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the trees severely obstructed a view from the applicant's dwelling within s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the severity and nature of any obstruction was such that the applicant's interest in removal, remedy or restraint outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)."]

Ratio Decidendi

The application failed because the sunlight issue was not a current problem, so s 14E(2)(a)(i) was not satisfied. As to views, even if the narrow corridor view to Pittwater were severely obstructed, the discretionary balancing under s 14E(2)(b) did not favour the applicant because the desired view was very distant, other trees beyond the respondents' property severely limited the view, pruning would provide negligible relief, and the applicant had extensive other views from the property. Accordingly s 14E(2) was not satisfied and no orders could be made.

Court Disposition

Application for pruning dismissed

Orders

  • ['The application is dismissed.']