Cole v Pilowsky

[2018] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cole v Pilowsky [2018] NSWLEC 1495
Hearing dates:	21 September 2018
Date of orders:	21 September 2018
Decision date:	21 September 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – obstruction of sunlight – consent orders – one tree not situated on adjoining land – one of respondents’ two trees removed – no jurisdiction for orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category:	Principal judgment
Parties:	Christine Cole (Applicant) Paul Pilowsky (First Respondent) Eva Pilowsky (Second Respondent)
Representation:	Christine Cole, litigant in person (Applicant) Paul Pilowsky, litigant in person (Respondents)
File Number(s):	2018/243543
Publication restriction:	No

Judgment

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

Background

1. Christine Cole (‘the applicant’) filed an application with the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for three trees to be pruned on the basis that they obstruct sunlight to windows of her Lane Cove dwelling. She also sought a costs order for fees she incurred obtaining shadow diagrams.

2. Paul and Eva Pilowsky (‘the respondents’) own the neighbouring property on which two of the trees in the application grow.

3. After the application was filed, the parties agreed to consent orders for pruning three trees. Today’s mention in Court was to establish whether those orders could be made by the Court and, if so, to make those orders. At the outset, Mr Pilowsky explained that one of the two trees on the respondents’ land had been removed, and the other pruned to a height that removed the sunlight obstruction. Ms Cole still pressed for an order to maintain that tree, and others on the respondents’ land, at a reduced height.

Part 2A of the Trees Act only applies to certain trees

4. Pursuant to s 14B of the Trees Act, orders can only be sought for an obstruction of sunlight or views caused by trees on adjoining land. Ms Cole cannot seek, and the Court cannot make, orders for a tree that is situated on her own land, as the Jacaranda is.

5. According to s 14A, Part 2A of the Trees Act “…applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).”

6. As one of the respondents’ trees has been removed, leaving only one tree, Part 2A cannot apply to that tree and the Court cannot make any orders for pruning it. “Other trees” on the respondents’ land that Ms Cole referred to this morning are not part of her application so cannot be considered by the Court.

7. An order for costs cannot be made by Commissioners of the Court, but would require a Notice of Motion to be filed by the applicant and heard by the Registrar or a Judge of the Court.

8. It follows from the foregoing that no orders can be made on this application. Should circumstances change in future Ms Cole may be able to make a new application to the Court.

9. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 21 September 2018