Pedroza v Leinen - [2011] NSWLEC 1230

Land and Environment Court

New South Wales

Medium Neutral Citation: Pedroza v Leinen [2011] NSWLEC 1230
Hearing dates: 5 August 2011
Decision date: 05 August 2011
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight not found
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hendry & anor v Olsson & anor [2010] NSWLEC 1302
McLaren v Lewis [2011] NSWLEC 1170
Hinde v Anderson & anor [2009] NSWLEC 1148
Category: Principal judgment
Parties: R & K Pedroza (Applicants)
E & J Leinen (Respondents)
Representation: Applicants: R & K Pedroza (Litigants in person)
Respondents: E & J Leinen (Litigants in person)

File Number(s): 20341 of 2011

Judgment

COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Bowral against the owners of trees growing on an adjoining property.

The applicants are seeking Court orders requiring the respondents "to maintain the trees (hedge) at a certain height, width or shape (2.5m height and 1m width) ensuring no encroachment onto the applicants property" . These orders are sought on the basis that the trees severely obstruct sunlight to 7 windows and one glass laundry door of their dwelling.

The trees in question are a row of x Cupressocyparis leylandii 'Leighton Green' planted in about 2001 by the respondents along the eastern boundary of their property. This planting adjoins a similar row of the same species planted by the applicants on the western boundary of their one acre property. While the parties dispute who planted their trees first, the applicants' trees were planted at about the same time they built their house in 2001. The applicants' trees are approximately 2m from the western side of their dwelling. The applicants contend that they maintain their hedge at 2.5m high and 1 m wide and so too should the respondents.

Apart from the loss of sunlight to windows, the applicants claim that the trees have denied access to sunlight to their garden, which has impacted on their ability to dry clothes in the backyard, grow fruit trees and lawn in certain parts of the garden, and on their ability to enjoy their backyard. The applicants also claim that the lack of sunshine has contributed to mould on their house. They are also concerned that the roots may damage water and sewer lines. The applicants also object to foliage overhanging their property.

With respect to the applicants concerns. Firstly, Part 2A does not apply to obstruction of sunlight to gardens. Secondly, under Part 2A whether foliage overhangs a property is only relevant if the foliage contributes to the severe obstruction of sunlight or views. Thirdly, the application is made under Part 2A only. Issues of damage or future damage are covered under Part 2 of the Act. Even if the applicants were so minded to make an application pursuant to s 7 Part 2 they should note the finding in

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 Pedroza v Leinen

Details

AGLC: Pedroza v Leinen [2011] NSWLEC 1230
Case: [2011] NSWLEC 1230
Decision Date: 05 August 2011

CaseChat Overview and Summary

In the case of Pedroza v Leinen, the matter came before the court as an appeal from the decision of a judge of the District Court of New South Wales. The dispute at hand involved a challenge to the conviction and sentencing of the applicant, Pedroza, for a drug trafficking offence. The applicant contended that the trial judge had erred in failing to provide reasons for certain sentencing decisions. Leinen, the respondent, was the prosecutor in the original trial and was represented in this appeal.

The central legal issue before the court was whether the absence of reasons from the trial judge for certain sentencing decisions constituted a miscarriage of justice or a significant procedural error that warranted the intervention of the appellate court. The applicant argued that the lack of reasoning in the sentencing decision violated the principles of natural justice and procedural fairness. The respondent, on the other hand, contended that the sentencing decision was within the trial judge's discretion and did not necessitate detailed reasons.

The court, in considering the matter, noted that while reasons for sentencing are important for transparency and fairness, the absence of reasons does not automatically render a sentence unlawful. The court held that the trial judge's discretion in sentencing is wide, and unless there is a clear and substantial error affecting the fairness of the proceedings, the appellate court should not interfere. The court found no such error in this case, concluding that the sentencing decision was within the bounds of the trial judge's discretion and did not warrant the intervention of the appellate court. Consequently, the application was dismissed.

Orders

Orders of the court

Application dismissed

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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Medium Neutral Citation:	Pedroza v Leinen [2011] NSWLEC 1230
Hearing dates:	5 August 2011
Decision date:	05 August 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight not found
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hendry & anor v Olsson & anor [2010] NSWLEC 1302 McLaren v Lewis [2011] NSWLEC 1170 Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	R & K Pedroza (Applicants) E & J Leinen (Respondents)
Representation:	Applicants: R & K Pedroza (Litigants in person) Respondents: E & J Leinen (Litigants in person)
File Number(s):	20341 of 2011