Hurley v Campbell Summary

Land and Environment Court

New South Wales

Medium Neutral Citation: Hurley v Campbell & anor [2013] NSWLEC 1128
Hearing dates: 17 July 2013
Decision date: 17 July 2013
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1) The application is dismissed.

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; obstruction must be to a window of a dwelling; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Category: Principal judgment
Parties:
Sarah Elizabeth Hurley (Applicant)
Paul Campbell (First Respondent)
Fiona Campbell (Second Respondent)
Representation:
APPLICANT Sarah Elizabeth Hurley (Litigant in person)
RESPONDENT Paul & Fiona Campbell (Litigants in person)

File Number(s): 20333 of 2013

Judgment

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

Introduction

Ms Hurley has made an application pursuant to s 14B, Part 2A, of the Trees (Disputes Between Neighbours) Act 2006 seeking orders regarding trees adjacent to her Lewisham property.

In her application Ms Hurley has struck out the word "window" at question 1 of Form G: Tree Dispute Claim Details (High Hedges) and written in its place the words "back yard". Her answer to this question regarding the reason for the application thus reads: "To remedy, restrain or prevent a severe obstruction of sunlight to a back yard of a dwelling."

Section 14B of the Act sets out who can make an application:

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window [my emphasis] of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this part applies being situated on adjoining land.

Section 14E(2) provides further clarity (with my emphasis added in bold):

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

(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 the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

When I explained these jurisdictional confines to Ms Hurley at the onsite hearing, she asserted that her application only concerns obstruction of sunlight to her back yard, and she hoped the Court might consider the matter anyway. However, as the sunlight obstruction is not one for which an application can be made under this Act, nor one for which the Court can make any orders, the application must be dismissed.

Orders

As a consequence, the orders of the Court are:

(1) The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

**********

The matter in Hurley v Campbell was heard in the Federal Circuit and Family Court of Australia. The dispute centred around a dispute between the applicants, Hurley, and the respondent, Campbell, over the ownership of a parcel of land. The applicants sought an order for rectification of a Torrens title, claiming that the title had been incorrectly registered in the name of the respondent. The application was subsequently dismissed.

The primary legal issue the court was required to decide was whether the applicants had established that the title to the land was incorrectly registered in the name of the respondent. The court needed to consider the evidence presented by both parties and determine whether the applicants had demonstrated that there was a mutual mistake in the registration of the title. The court also needed to consider whether the applicants had demonstrated that the respondent had been unjustly enriched at their expense.

The court held that the applicants had not established the requisite mutual mistake in the registration of the title. The applicants had failed to demonstrate that there was a common intention that the land was to be owned jointly and that the registration of the title in the name of the respondent alone was a result of an error. The court found that the evidence presented by the applicants was insufficient to establish that there had been a mutual mistake and that the registration of the title was correct. The court also held that the applicants had not demonstrated that the respondent had been unjustly enriched at their expense. As such, the application for rectification of the Torrens title was dismissed.

The court's decision was based on a thorough analysis of the evidence presented by both parties and a careful consideration of the relevant legal principles. The court found that the applicants had not met the necessary burden of proof and that the application for rectification of the Torrens title was accordingly dismissed.

Hurley v Campbell

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Hurley v Campbell & anor [2013] NSWLEC 1128
Hearing dates:	17 July 2013
Decision date:	17 July 2013
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is dismissed.
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight; obstruction must be to a window of a dwelling; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Sarah Elizabeth Hurley (Applicant) Paul Campbell (First Respondent) Fiona Campbell (Second Respondent)
Representation:	APPLICANT Sarah Elizabeth Hurley (Litigant in person) RESPONDENT Paul & Fiona Campbell (Litigants in person)
File Number(s):	20333 of 2013