Davis & anor v Millar [2016] NSWLEC 1256

Davis & anor v Millar [2016] NSWLEC 1256

Although the applicants had made reasonable efforts to reach agreement and the trees severely obstructed sunlight to at least the living room and kitchen windows, the trees were already well established and about 5-6m tall when the applicants purchased the property. The requested pruning height was far below the trees' height at purchase and would likely create solar access that did not then exist. Because the applicants provided no reliable photographs or shadow diagrams showing the solar access available at purchase, the Court could not be satisfied under s 14E(2)(b) that their interest in pruning outweighed the reasons against interfering with the trees. The statutory test was not...

Jurisdiction
Australia
Judgment Date
22 June 2016
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Determination
Outcome
Application dismissed
Legal Topics
['high Hedge' 'obstruction of Sunlight' 'solar Access' 'pruning Orders' 'jurisdictional Tests Under Part 2 A']
['land and Environment' 'trees Disputes Between Neighbours'] ['high Hedge' 'obstruction of Sunlight' 'solar Access' 'pruning Orders' 'jurisdictional Tests Under Part 2 A']

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Determination

Legal Issues

  1. 1 ['Whether the Leyland Cypress trees formed a hedge of trees more than 2.5m tall within s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicants had made a reasonable effort to reach agreement with the respondent under s 14E(1)(a).' "Whether the trees were severely obstructing sunlight to windows of the applicants' dwelling under s 14E(2)(a)(i)." "Whether the severity and nature of the obstruction meant the applicants' interest in remedying it outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)."]

Ratio Decidendi

Although the applicants had made reasonable efforts to reach agreement and the trees severely obstructed sunlight to at least the living room and kitchen windows, the trees were already well established and about 5-6m tall when the applicants purchased the property. The requested pruning height was far below the trees' height at purchase and would likely create solar access that did not then exist. Because the applicants provided no reliable photographs or shadow diagrams showing the solar access available at purchase, the Court could not be satisfied under s 14E(2)(b) that their interest in pruning outweighed the reasons against interfering with the trees. The statutory test was not...

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']