Day v Caithness

Land and Environment Court

New South Wales

Medium Neutral Citation:

Day v Caithness [2022] NSWLEC 1577

Hearing dates:

26 July 2022

Date of orders:

26 July 2022

Decision date:

26 July 2022

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – Review of the Trees Act – trees severely obstructing sunlight before applicants’ occupation – other causes of sunlight obstruction

Legislation Cited:

Interpretation Act 1987

Trees (Disputes Between Neighbours) Act 2006

Pt 2A, s 14A, 14B, 14E, 14F

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:

NSW Justice & Attorney General’s Department ‘Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)’ (November 2009)

Category:

Principal judgment

Parties:

Wendy Day (First Applicant)
Brian Day (Second Applicant)
Lee Caithness (First Respondent)
David Caithness (Second Respondent)

Representation:

W Day (Self represented) (First Applicant)
B Day (Self represented) (Second Applicant)
L Caithness (Self represented) (First Respondent)
D Caithness (Self represented) (Second Respondent)

File Number(s):

2022/122064

Publication restriction:

No

Judgment

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

Background

1. Mr and Mrs Day, the applicants, occupied their property in Forster in 2016, while the respondents, Mr and Mrs Caithness, built and occupied their property in 1995, and planted trees along their southern boundary soon after to provide privacy for their back yard, and for a 1^st floor bedroom window. The parties share a side boundary which runs roughly from west at the front to east at the rear. The applicants’ land is to the south of the respondents’ property.

2. The trees comprise a row of ten Syzygium paniculata (Lilly Pilly) (the trees), which are shown at question 2 of the Tree Dispute Claim details (Exhibit B) to be growing parallel with and adjacent to the common boundary, on the respondents’ land. The applicants noted that the trees were 6 metres (m) tall when they purchased their property, and 4.5 m in height when they lodged their application. Mr and Mrs Day nominated four windows (W1 – W4) and claim, at question 4 of Exhibit B, that the trees are obstructing 100% of their sunlight “to every window every day of every month. We get no sunlight at all. We face north and miss every bit of sun there is”.

3. As a consequence, Mr and Mrs Day submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), seeking the following orders:

“1. We would like the 10 x 4.5 metre high Lilly Pilly trees cut down to 2.5 metres high, which will, (a) allow sunlight to come through, and, (b) stop leaves and debris…