Cavalier v Young

[2011] NSWLEC 1080

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cavalier v Young [2011] NSWLEC 1080
Hearing dates:	4 April 2011
Decision date:	04 April 2011
Jurisdiction:	Class 3
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS]; Hedge; obstruction of sunlight; adjoining land; what constitutes a hedge.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke [2008] NSWLEC 152 Salisbury v Harrison & anor [2011] NSWLEC 1069 Wisdom v Payne [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Mr J Cavalier (Applicant) Mrs P Young (Respondent)
File Number(s):	20958 of 2010

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Abercrombie Street West Wollongong against the owner of trees growing on a property in Valetta St.

1. The applicant is seeking the pruning of a number of trees to a height approximately half their current size. These orders are sought on the basis that the trees severely obstruct sunlight to 4 windows of a sunroom at the rear of the applicant's dwelling. The applicant contends the obstruction is severe during autumn and winter afternoons.

1. The respondent does not want the trees pruned as she value the amenity of what she describes as her "small piece of bushland". The trees were planted about 15 years ago.

Adjoining land

1. Before considering the trees and any obstruction of sunlight they might cause, the issue of 'adjoining land' was raised in the respondent's written evidence. It is appropriate to consider this jurisdictional matter as it goes to the making of an application under s 14B.

1. Section 14B of the Act states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land (my emphasis).

1. The question of 'adjoining land' was discussed in the first case heard under the Trees Act in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 albeit in the context of a property across a road. Similarly, Preston CJ in Robson v Leischke [2008] NSWLEC 152 addresses 'adjoining land' at [157].

1. In the matter before the Court, the respondent's property is diagonally to the rear or northwest of the applicant's property. The only common point between the two properties is a corner post. I am satisfied that despite the limited physical connection between the two properties, they are adjoining and the matter can proceed to the next step.

Relevant background

1. About 15 years ago, the respondent replaced a cottage…