Pham v Papaioannou [2011] NSWLEC 1044

Land and Environment Court New South Wales

Medium Neutral Citation: Pham v Papaioannou [2011] NSWLEC 1044 Hearing dates: 28 January 2011 Decision date: 09 February 2011 Jurisdiction: Class 2 Before: Brown C and Galwey A/C Decision: Appeal upheld, in part Catchwords: TREE DISPUTE - whether trees create severe obstruction of sunlight to, and view loss from, a window in a dwelling Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Dr Tri Huu Pham (Applicant) Mr Emile Papaioannou and Ms Vicky Papaioannou (Respondents) Representation: Counsel: Mr M Gunning, barrister (Applicant) Mr C McFadzean, solicitor (Respondent) Solicitors: Shaw Reynolds Bowen & Gerathy (Respondent) File Number(s): 20802 of 2010

Judgment 1COMMISSIONERS: This is an application under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Liguria Street, South Coogee regarding: trees on the adjoining property that is claimed obstruct sunlight to, and views from his dwelling. 2The applicant's dwelling was inspected on the site view and the locations of the view loss and the loss of sunlight were observed ; and an understanding of the relationship between these locations and the adjoining properties was made. The respondents' rear yard was also inspected, as were the trees in question, and observations were also made of the relationship between this area and the adjoining property, including the windows identified in the application.

The application 3Dr Pham is seeking orders that require the pruning of 7 x Lillypilly that have heights ranging between 2.76 m and 3.25 m. The trees are located at the northern end on the adjoining property, and the application seeks orders that the trees be maintained by the respondents at regular intervals, so that the top level of the trees will always remain below or at the level of the top of the existing colour bond fencing on the common boundary. During the hearing, Mr Gunning, for the applicant submitted the applicant would accept pruning of the trees to a height of some 250mm above the existing colour bond fence. 4The application also seeks orders to prevent other trees being planted to prevent a similar obstruction along the boundary or elsewhere on the property and also orders binding successors in title. The former is outside the scope of the Act as the Act applies only to existing trees and the latter is inconsistent with the provisions of s 16 of the Act. 5The application indicates that the view loss occurs from a large east facing window (W1) and an adjoining narrow vertical window (W2), both located in the living room, and from the rear yard, also in an easterly direction. The application states that the trees prevent distant views, over existing roofs, to the Pacific Ocean. The severe loss of sunlight is said to occur to at W1, and to a lesser extent, W2.