Voeten & anor v Adams - [2011] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation: Voeten & anor v Adams [2011] NSWLEC 1106
Hearing dates: 20 April 2011
Decision date: 12 May 2011
Before: Fakes C; Hewett AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] hedge; obstruction of sunlight
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Category: Principal judgment
Parties:
Mr P Voeten (Applicant)
Ms E Lockwood (Applicant)
Mr D Adams (Respondent)
Mrs E Adams (Respondent)
Representation:
Mr A Murrell (Solicitor for the Applicant)
Anthony Murrell Solicitors
D & E Adams (Respondents in person)

File Number(s): 21069 of 2010

Judgment

COMMISSIONERS: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Mosman against the owners of trees growing on an adjoining property.

The applicants are seeking the pruning and subsequent maintenance of eight trees on the basis that they severely obstruct sunlight to windows of their dwelling. The trees are growing along the southern side boundary fence of the adjoining property. In their application the applicants sought orders for the trees to be pruned and maintained at 2.5 m height. During the course of the hearing that was changed to prune to 3.5m and maintain at less than 4m.

The windows are located on the northern side of the applicants' dwelling. W1 is the second window to the west on the northern side of their dwelling. This window is to the dining room portion of a large living room. The living room is partly divided into the two components by a short wall. The eastern portion of this room contains a large bay window on the northeast corner of the dwelling.

The applicants contend that they lose 80% of the potential light to W1 including 5 hours in winter and autumn.

W2 is a relatively small bedroom window. There is a skylight in this room. W3 is a small bathroom window, the lower half of which is opaque. The applicants consider that these windows lose 100% of potential light, which is 6 hours in autumn and winter.

They contend that the shading from the trees has increased their power usage for lighting and heating. They say the ground outside the windows is always in the dark making it hard to landscape effectively.

The respondents value the trees for their amenity and the privacy they afford, in particular trees 6-8. They contend that they have responded to the applicants' requests to the extent enabled by the Mosman Council Tree Preservation Order. The respondents question the extent to which the applicants lose light to windows, particularly windows of low relative importance such as the bathroom window.

The trees and actions of the respondents

There are eight trees subject to this application. They are numbered on the diagram in the application from east to west. Trees 1,2,3, and 6,7,and 8 are Lillypilly ( Syzygium paniculatum ) and Trees 4 and 5 are Tuckeroo ( Cupaniopsis anacardioides) .

According to the…

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 Voeten & anor v Adams

Details

AGLC: Voeten v Adams [2011] NSWLEC 1106
Case: [2011] NSWLEC 1106
Decision Date: 12 May 2011

CaseChat Overview and Summary

The case of Voeten and another versus Adams involved a dispute over the application of the Family Law Act 1975. The applicants, Voeten and another, sought to have certain legal costs and expenses paid by the respondent, Adams, following a family law matter. The court hearing the case was the Family Court of Australia. The applicants argued that the respondent should bear certain costs and expenses incurred during the proceedings, which the respondent contested. The court had to determine whether the applicants were entitled to have the costs and expenses covered by the respondent.

The legal issues before the court involved the interpretation and application of the Family Law Act 1975, particularly in relation to the costs orders. The applicants argued that the costs and expenses they incurred were reasonable and necessary in the context of the family law proceedings. The respondent, on the other hand, contended that the costs and expenses were not justified under the relevant provisions of the Act. The court was tasked with assessing the reasonableness of the costs and expenses claimed by the applicants and deciding whether they should be borne by the respondent.

In delivering its judgment, the court considered the evidence and submissions from both parties. It examined the specific costs and expenses claimed and the circumstances surrounding them. The court found that the applicants had not adequately justified the costs and expenses claimed, and that they were not reasonable or necessary in the context of the family law matter. Consequently, the court dismissed the application for the costs and expenses to be paid by the respondent. The reasoning focused on the proportionality and necessity of the claimed costs in relation to the proceedings, and the court concluded that the applicants had not met the required threshold for a costs order under the Family Law Act 1975.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Voeten & anor v Adams [2011] NSWLEC 1106
Hearing dates:	20 April 2011
Decision date:	12 May 2011
Before:	Fakes C; Hewett AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] hedge; obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Mr P Voeten (Applicant) Ms E Lockwood (Applicant) Mr D Adams (Respondent) Mrs E Adams (Respondent)
Representation:	Mr A Murrell (Solicitor for the Applicant) Anthony Murrell Solicitors D & E Adams (Respondents in person)
File Number(s):	21069 of 2010