Tyler v Owners Corporation SP 44154 [2008] NSWLEC 1235

Land and Environment Court of New South Wales

CITATION : Tyler v Owners Corporation SP 44154 [2008] NSWLEC 1235

APPLICANTS R & M Tyler PARTIES : RESPONDENT Owners Corporation SP 44154

FILE NUMBER(S) : 20308 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: Trees (Neighbours) :- Overshadowing

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 28 May 2008

EX TEMPORE JUDGMENT DATE : 28 May 2008

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT Mr P Edmiston & Ms Wolters, members of the Strata Plan

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C THYER AC

28 May 2008

08/20308 Tyler v Owners Corporation SP 44154

JUDGMENT

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

1 COMMISSIONERS: Mr and Mrs Tyler live at 17 Woodbine Street, Normanhurst. Adjoining their property to the north is a two-residence strata plan property, Strata Plan 44154. Immediately adjacent to the Tylers' property is a row of Cyprus trees along the common property of the strata plan. An Angophora is growing in the common property of the strata plan at the front adjacent to Woodbine Avenue.

2 Mr and Mrs Tyler seek orders for the removal of all of the Cypress trees and of the Angophora. They do not seek any order with respect to a Maple which is located at approximately one third of the distance along (and growing in) the row of Cypress trees adjoining their property. 3 The application for removal of the Cypress trees is put on a variety of grounds. It is convenient to address, against the tests contained in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006, five issues relating to the Cypress trees. The location of these trees can be regarded as them being in three separate elements. 4 The first element is a group of Cypress trees to the rear of the Tylers' property adjacent to the pathway and ramp leading to the rear of the Tylers' garage. The second is the group of Cypress trees that extend toward but slightly to the rear of the meter box at the front of the Tylers' property. The final group of Cypress trees is those from adjacent to the meter box to the front of the common property adjoining or in the vicinity of the services poles located on each of the properties.