Baker v Swan [2023] NSWLEC 1359

Baker v Swan [2023] NSWLEC 1359

The Lilly Pilly trees formed a hedge, but the Ash trees and Weeping Bottlebrush did not. Although the applicant had made a reasonable effort to reach agreement and had given required notice, the Court was not satisfied that the Lilly Pilly hedge severely obstructed sunlight to the nominated living room window; any obstruction was negligible to minor. Other complaints concerned areas or objects outside the Pt 2A jurisdiction, such as a garage wall, veranda, solar panels, yard, driveway, overhanging foliage and ordinary tree debris. The statutory precondition in s 14E(2)(a)(i) was therefore not met and the application was refused.

Jurisdiction
Australia
Judgment Date
20 February 2023
Procedural Posture
Class 2 Tree Dispute Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After Onsite Hearing
Outcome
The application was refused.
Legal Topics
['high Hedges' 'severe Obstruction of Sunlight to a Window of a Dwelling' 'foliage Encroachment and Tree Debris' 'reasonable Effort to Reach Agreement']
['land and Environment' 'trees Disputes Between Neighbours'] ['high Hedges' 'severe Obstruction of Sunlight to a Window of a Dwelling' 'foliage Encroachment and Tree Debris' 'reasonable Effort to Reach Agreement']

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Procedural Posture

Class 2 Tree Dispute Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Determination After Onsite Hearing

Legal Issues

  1. 1 ["Whether the respondent's trees formed a hedge for the purposes of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the applicant made a reasonable effort to reach agreement with the respondent 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 applicant's dwelling within s 14E(2)(a)(i) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether complaints about overhanging foliage, leaves, gutter maintenance, shading of yards or solar panels engaged the jurisdiction under Pt 2A of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The Lilly Pilly trees formed a hedge, but the Ash trees and Weeping Bottlebrush did not. Although the applicant had made a reasonable effort to reach agreement and had given required notice, the Court was not satisfied that the Lilly Pilly hedge severely obstructed sunlight to the nominated living room window; any obstruction was negligible to minor. Other complaints concerned areas or objects outside the Pt 2A jurisdiction, such as a garage wall, veranda, solar panels, yard, driveway, overhanging foliage and ordinary tree debris. The statutory precondition in s 14E(2)(a)(i) was therefore not met and the application was refused.

Court Disposition

The application was refused.

Orders

  • ['The application is refused.']