The Owners - Strata Plan 92669 v Elvy [2023] NSWLEC 1080

The Owners - Strata Plan 92669 v Elvy [2023] NSWLEC 1080

Although the trees formed a hedge, notice requirements were met, and the Applicant had made a reasonable effort to reach agreement, the Court was not satisfied that the hedge severely obstructed sunlight to the first-floor apartment or severely obstructed views from the second-floor apartment at the time of the hearing. The main causes of sunlight obstruction were the apartment's orientation and design and nearby building features, and broad water views were available after pruning before the hearing. Section 14E(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 was therefore not engaged, leaving the Court without power to make the requested orders.

Jurisdiction
Australia
Judgment Date
23 February 2023
Procedural Posture
Class 1 Application Under S 14 B of Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Seeking Pruning of a Hedge / Principal Judgment After on Site Hearing
Outcome
Application refused.
Legal Topics
['high Hedges' 'obstruction of Sunlight' 'obstruction of Views' 'privacy' 'jurisdictional Requirements for Orders Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'land and Environment'] ['high Hedges' 'obstruction of Sunlight' 'obstruction of Views' 'privacy' 'jurisdictional Requirements for Orders Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006']

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 1 Application Under S 14 B of Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Seeking Pruning of a Hedge / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether the row of Lilly Pilly trees was a hedge within s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Applicant gave required notice under s 14C of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Applicant made a reasonable effort to reach agreement with the Respondents as required by s 14E(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the hedge was severely obstructing sunlight to a window of the first-floor dwelling on the Applicant's land." "Whether the hedge was severely obstructing a view from the second-floor dwelling on the Applicant's land at the time of the hearing." 'Whether the Court should adopt the approach in Steber v Jobb where a hedge has been pruned shortly before an on-site hearing.']

Ratio Decidendi

Although the trees formed a hedge, notice requirements were met, and the Applicant had made a reasonable effort to reach agreement, the Court was not satisfied that the hedge severely obstructed sunlight to the first-floor apartment or severely obstructed views from the second-floor apartment at the time of the hearing. The main causes of sunlight obstruction were the apartment's orientation and design and nearby building features, and broad water views were available after pruning before the hearing. Section 14E(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 was therefore not engaged, leaving the Court without power to make the requested orders.

Court Disposition

Application refused.

Orders

  • ['The application is refused.']