The Owners Strata Plan 92669 v Elvy

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners - Strata Plan 92669 v Elvy [2023] NSWLEC 1080

Hearing dates:

5 December 2022

Date of orders:

23 February 2023

Decision date:

23 February 2023

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges –obstruction of views and sunlight – other causes of obstruction – balance between views and privacy

Legislation Cited:

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

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Hinde v Anderson & anor [2009] NSWLEC 1148

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Steber v Jobb [2019] NSWLEC 1308

Tooth v McCombie [2011] NSWLEC 1004

Category:

Principal judgment

Parties:

Owners of Strata Plan 92669 (Applicant)
Mark Selwyn Elvy (First Respondent)
Virginia Louise Elvy (Second Respondent)

Representation:

Counsel:
B Rix (Agent) (Applicant)
S Green (Solicitor) (Respondent)

Solicitors:
Green & McKay (Respondent)

File Number(s):

2022/217425

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an application under s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by The Owners of Strata Plan 92669, (the Applicant) who seeks the pruning of a hedge in a neighbouring property to remedy severe obstruction of sunlight to a window, and severe obstruction of views from a dwelling.

2. The Applicant is located in Coffs Harbour on the mid-north coast. It shares a north - south boundary with a property on its eastern side, which is owned by the Respondents, Mark and Virginia Elvy. A row of about 20 mature Syzygium sp. (Lilly Pilly) (the trees) are growing along the Respondents’ side of the common boundary.

3. The Respondents occupied their property in 1987. In about 2005, bushland on the uphill slope to the west of the Elvy’s was cleared and a concrete slab was poured on site. Soon after, the Respondents planted the trees, with the aim of providing privacy from overlooking of their dwelling and rear yard. After many years of inactivity, the Applicant’s five storey building was completed and registered in December 2015.

4. Two owners of Strata Plan 92669 are seeking remedy under this application. One is Dr Gosh who occupied first-floor apartment ‘1’ in early 2016 and claims that the trees cause a severe obstruction of sunlight to a window. Mr Rix, the Agent acting for the Applicant, claims that the trees severely obstruct views from his second-floor apartment, ‘3’, which were available upon his occupation at the end of 2015.

5. In 2017, Dr Gosh conducted mediation with the Respondents in an attempt to gain more light to his apartment. Mr Rix claimed, at question 8 of Tree Dispute Claim Details (form G), “this was unsuccessful” while the Respondents submitted that in 2017, they “assisted Dr Gosh and Coffs Harbour City Council to substantially clear a reserve to the south”… resulting in “significant additional sunlight to the…