COMMISSIONERS: This is an application under Part 2A of the Trees (Disputes Between Neighbours) 2006 (the Act) made by the owner of a property in Princes Street Putney regarding trees on the adjoining property that is claimed obstruct sunlight to, and views from his dwelling. Mr Drewett (the applicant) was self represented and resides in a unit in a group of four attached units constructed around 1999. The applicant’s unit is the last in the group and adjoins the rear boundary.
Mrs Best was represented by a family member, Mr Pearce (the respondent). This property adjoins the applicant’s property on the south-western boundary. This property contains a single dwelling, pool and an outdoor recreation area. The trees in question are located towards the rear of the site near the applicant’s unit.
An inspection of both sites was undertaken on the morning of the hearing. The inspection of the properties was undertaken with the owner of each property but in the absence of the owner of the adjoining property as the respective property owners denied access to their properties to their neighbour. As it was necessary for the Court to view each property, each party was advised that during the inspection of each property, no comments should be made to the Court on any aspect of the case beyond identifying matters set out in the application and any responding correspondence from the respondent. The parties were advised of the Courts observations following each inspection.
The applicant’s unit was inspected from the balcony area adjoining the living room and the windows identified as being the windows the subject of the claim of obstruction of sunlight were identified. These were the two full height living room windows (windows W1 and W2) and the full height window of the main bedroom (window W3). Other outdoor areas to the north and west were also inspected. Some measurements were taken of the height of the existing trees and the height of existing retaining walls. Observations were made from the balcony area adjoining windows W1 and W2 generally to the south where it was claimed that the view loss occurred. Observations were also made of the existing landscaping and the area available for landscaping on the site. The Court was also taken to the outdoor entry area of the adjoining unit (Unit 3) were it was claimed that similar views were available from the balcony area adjoining windows W1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Drewett v Best

Details

AGLC: Drewett v Best [2010] NSWLEC 1305
Case: [2010] NSWLEC 1305
Decision Date: 9 November 2010

CaseChat Overview and Summary

Kel Drewett brought an application against Gwen Best under the Trees (Disputes Between Neighbours) Act 2006, claiming that trees on Ms Best's property were obstructing sunlight to and views from his dwelling in Putney. The case was heard by the Land and Environment Court of New South Wales. Mr Drewett, who lives in a unit that adjoins Ms Best's property, argued that the trees were blocking sunlight to his living room and main bedroom windows and obstructing his view from his living room balcony. Ms Best denied access to her property during the site inspection, but the Court was able to inspect both properties with the respective owners present.

The Court determined that the trees in question did not severely obstruct sunlight to Mr Drewett's windows, as the windows were oriented in a way that they would not receive sunlight in the morning or early afternoon. The Court also found that the trees obstructed the view from Mr Drewett's living room balcony, and that reducing the height of the trees would not unacceptably impact their health and vigour, nor would it impact on the privacy of Ms Best's property. The Court held that the applicant's interest in having the obstruction remedied outweighed any other matters that suggested the undesirability of disturbing or interfering with the trees.

The Court ordered that Ms Best engage an arborist or horticulturist to prune the relevant trees to a height of 3.5 meters, with Mr Drewett to reimburse Ms Best 50% of the cost of the work. Ms Best was also ordered to maintain the plants at the specified height at her own cost. The Court's decision was based on the fact that the benefit of the pruning would go to Mr Drewett, and that reducing the height of the trees would not unduly impact on the privacy of Ms Best's property.

Orders