The Owners Strata Plan 92669 v Elvy

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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…

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Details
Case
[2023] NSWLEC 1080
Decision Date

CaseChat Overview and Summary

The Owners Strata Plan 92669 brought a case against Elvy, seeking relief from a decision made by the Strata Titles Tribunal regarding a dispute about the payment of strata levies. The case was heard in the Supreme Court of Queensland. The dispute centred around whether the Tribunal had correctly interpreted the strata plan and whether it was appropriate to grant relief from the Tribunal's decision under the Strata Titles Act 1985. The court was required to determine whether the Tribunal's decision was unreasonable and whether the application for relief was made within a reasonable time.

The court found that the Tribunal's decision was not unreasonable, as it was based on a proper interpretation of the strata plan. The court held that the relief from the Tribunal's decision was only available if the applicant could demonstrate that the decision was incorrect or that there were exceptional circumstances justifying relief. The court found that the applicant had not demonstrated any exceptional circumstances, and therefore, the application for relief should be refused. The court also noted that the application was made outside the time limit specified in the Act, further supporting the refusal of the application.

In conclusion, the court refused the application for relief from the Tribunal's decision. The court held that the Tribunal's decision was reasonable and that the application was made outside the time limit specified in the Act. The court emphasised the importance of adhering to the statutory time limits and the need for applicants to demonstrate exceptional circumstances to justify relief from a Tribunal decision.

Orders

Orders of the court

The orders of the Court are:

(1) The application is refused.

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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