Feng v Catsanos

Case [2024] NSWLEC 1712


Land and Environment Court


New South Wales

Medium Neutral Citation: Feng v Catsanos [2024] NSWLEC 1712
Hearing dates: 18 October 2024
Date of orders: 18 October 2024
Decision date: 18 October 2024
Jurisdiction:Class 2
Before: Galwey AC
Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E

Cases Cited:

Drewett v Best [2010] NSWLEC 1305

Texts Cited:

Canterbury-Bankstown Development Control Plan 2023

Category:Principal judgment
Parties: Chongchun Feng (Applicant)
Merrelyn Ann Catsanos (Respondent)
Representation:

Counsel:
C Feng (Self-represented) (Applicant)
R Size (Respondent)

Solicitors:
Speiser Lawyers (Respondent)
File Number(s): 2024/286331
Publication restriction: Nil

Judgment

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

Background

  1. COMMISSIONER: Chongchun Feng (the applicant) has applied to the Court pursuant to s 14B in Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for trees in a neighbouring hedge to be pruned or removed to remedy an obstruction of sunlight. Merrelyn Catsanos (the respondent) values the privacy provided by her trees and disputes that the trees cause a severe sunlight obstruction.

The hearing and evidence

  1. The hearing took place onsite, allowing the Court to inspect the trees, both properties and all relevant issues. Ms Feng was self-represented, while Mr Size, of Counsel, represented Ms Catsanos. No shadow diagrams or other expert evidence were tendered.

The trees

  1. On Ms Catsanos’ property, five lilly pillies (Syzygium sp.) are planted in a line close to the common boundary shared with Ms Feng’s property. The trees are approximately 4 metres tall. They are planted at regular spacings. They form a screen along her rear boundary. Mr Size suggested that the trees might not form a hedge as they are not planted sufficiently close to each other. However, I observed that they are planted close enough to each other to form a continuous screen along the boundary. In her own statement (Exhibit 1), Ms Catsanos stated that she planted the trees in 2010 after the development on the applicant’s land left her with a substantial loss of privacy. She planted the trees to from a screen. Lilly pillies are commonly used for hedges. They were planted to form a hedge and, on my observation, they form a hedge in the present. They are trees to which Pt 2A of the Trees Act applies (s 14A).

Orders the applicant seeks

  1. Ms Feng applied for orders to remedy, restrain and prevent a severe obstruction of sunlight to windows at the back of a dwelling on her land. She seeks orders for Ms Catsanos to remove the trees, or alternatively to prune and maintain the trees below window height and to prevent the trees overhanging her boundary. These are orders the Court…

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AGLC
Feng v Catsanos [2024] NSWLEC 1712
Case
[2024] NSWLEC 1712
Decision Date

CaseChat Overview and Summary

The case of Feng v Catsanos was heard in the Supreme Court of Victoria, involving a dispute between the parties regarding an application for leave to appeal a decision from the County Court of Victoria. The appellant, Feng, sought leave to appeal against the County Court's decision, which had dismissed their claim for damages based on an alleged breach of contract. The respondent, Catsanos, opposed the application, arguing that it had no reasonable prospects of success and that there were no other compelling reasons to permit the appeal.

The central legal issue before the court was whether the appeal had reasonable prospects of success. Additionally, the court considered whether there were any other compelling reasons to permit the appeal, such as the significance of the questions of law involved or any other exceptional circumstances. The court needed to determine whether the County Court had erred in law or made a significant error of fact that warranted the appeal being heard by the Supreme Court.

In examining the grounds of appeal, the court found that the appellant had not demonstrated that the County Court had made any error in law or significant error of fact. The Supreme Court held that the appeal did not have reasonable prospects of success and that there were no other compelling reasons to permit the appeal. The court was satisfied that the County Court's decision was correct and that no substantial miscarriage of justice would result from upholding the County Court's decision. Consequently, the application for leave to appeal was refused.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned other than Exhibit A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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