Griffiths v Owners Corporation Strata Plan 9383

Land and Environment Court

New South Wales

Medium Neutral Citation:	Griffiths & anor v Owners Corporation Strata Plan 9383 [2016] NSWLEC 1294
Hearing dates:	18 July 2016
Date of orders:	18 July 2016
Decision date:	18 July 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; obstruction not severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ball v Bahramali [2010] NSWLEC 1334 Haindl v Daisch [2011] NSWLEC 1145 Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Applicants: Deryck & Shirley Griffiths Respondent: Owners Corporation Strata Plan 9383
Representation:	Applicant: Mr D Griffiths (Litigant in person) Respondents: Ms J Graham, Mr J Willock, Mr M Williams (agents/ owners)
File Number(s):	153968 of 2016

Judgment

1. COMMISSIONER: Since 2006 the applicants have owned a unit in Queenscliff. In their application claim form they state that at that time, they obtained good daytime views of the ocean and Manly Beach from their living area and balcony. In the evening, they enjoyed the view of the broad span of lights across the full width of Manly Bay.

2. The applicants contend that while a view of Manly Beach remains across the rooftop of the respondent’s dwelling, the growth of five Casuarina trees on the respondent’s driveway has considerably diminished the applicants’ day and night views to the point where it no longer includes the broad bay with its waves sweeping in to the surf and shoreline.

3. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning or removal of the five trees. The basis of the application is that the trees severely obstruct views from their dwelling.

4. The respondent’s trees have been the subject of a previous application under Part 2A of the Trees Act (see Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356). That application (the Kiely application), made by an owner of another unit in the applicants’ apartment building and which also sought removal or pruning of the trees on the basis that they severely obstructed views from that unit, was dismissed.

5. The respondent’s position has not changed; they do not want the trees removed or pruned to the extent requested by the applicants.

6. In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied. The respondent’s property is across the road. As discussed in the Kiely judgment at paragraphs [6] to [8], the trees are trees to which Part 2A applies.

7. The key remaining test in this matter is found in s 14E(2) which states:

(2)   The Court must not make an order under this Part unless it is satisfied:

(a)   the trees concerned:

(i)   are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii)   are severely obstructing a view from a dwelling situated on…