Drewett v Best [2010] NSWLEC 1305

Land and Environment Court of New South Wales

CITATION : Drewett v Best [2010] NSWLEC 1305

APPLICANT Kel Drewett PARTIES : RESPONDENT Gwen Best

FILE NUMBER(S) : 20628 of 2010

CORAM: Brown C - Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- obstruct sunlight to windows - obstruct views from dwelling.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 1 November 2010

DATE OF JUDGMENT: 9 November 2010

APPLICANT In Person LEGAL REPRESENTATIVES:

RESPONDENT Mr Pearce, agent

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C and Fakes C

9 November 2010

20628 of 2010 Kel Drewett v Gwen Best JUDGMENT 1 COMMISSIONERS: This is an application under Part 2A of the Trees (Disputes Between Neighbours) 2006 (the Act) made by the owner of a property in Princes Street Putney regarding trees on the adjoining property that is claimed obstruct sunlight to, and views from his dwelling. Mr Drewett (the applicant) was self represented and resides in a unit in a group of four attached units constructed around 1999. The applicant's unit is the last in the group and adjoins the rear boundary. 2 Mrs Best was represented by a family member, Mr Pearce (the respondent). This property adjoins the applicant's property on the south-western boundary. This property contains a single dwelling, pool and an outdoor recreation area. The trees in question are located towards the rear of the site near the applicant's unit. 3 An inspection of both sites was undertaken on the morning of the hearing. The inspection of the properties was undertaken with the owner of each property but in the absence of the owner of the adjoining property as the respective property owners denied access to their properties to their neighbour. As it was necessary for the Court to view each property, each party was advised that during the inspection of each property, no comments should be made to the Court on any aspect of the case beyond identifying matters set out in the application and any responding correspondence from the respondent. The parties were advised of the Courts observations following each inspection. 4 The applicant's unit was inspected from the balcony area adjoining the living room and the windows identified as being the windows the subject of the claim of obstruction of sunlight were identified. These were the two full height living room windows (windows W1 and W2) and the full height window of the main bedroom (window W3). Other outdoor areas to the north and west were also inspected. Some measurements were taken of the height of the existing trees and the height of existing retaining walls. Observations were made from the balcony area adjoining windows W1 and W2 generally to the south where it was claimed that the view loss occurred. Observations were also made of the existing landscaping and the area available for landscaping on the site. The Court was also taken to the outdoor entry area of the adjoining unit (Unit 3) were it was claimed that similar views were available from the balcony area adjoining windows W1 and W2. 5 The property containing the trees was inspected and it was found that the number of trees varied from that identified by the applicant in his original application and also his further details. The trees in the area adjoining the applicant's unit were: - 6 x Tecomaria capensis (Cape Honeysuckle), a part climbing shrub, located directly adjoining the brick retaining wall on the common boundary with heights around 5 m, - 4 x (Syzygium sp) (Lillypilly) located in a row approximately 1.5 m from the common boundary with heights around 5 m, - 1 x Camphor Laurel (Cinnamomum camphora), a mature species in excess of 40 years old and located towards the rear of the site and some 8 m from the common boundary, and - 1 x Murraya paniculata located towards the rear of the site and between the Camphor Laurel and the row of Lillypillys.