Hurley v Campbell & anor [2013] NSWLEC 1128

Land and Environment Court New South Wales

Medium Neutral Citation: Hurley v Campbell & anor [2013] NSWLEC 1128 Hearing dates: 17 July 2013 Decision date: 17 July 2013 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The application is dismissed. Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; obstruction must be to a window of a dwelling; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Sarah Elizabeth Hurley (Applicant)

Paul Campbell (First Respondent) Fiona Campbell (Second Respondent) Representation: APPLICANT Sarah Elizabeth Hurley (Litigant in person)

RESPONDENT Paul & Fiona Campbell (Litigants in person) File Number(s): 20333 of 2013

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

Introduction 1Ms Hurley has made an application pursuant to s 14B, Part 2A, of the Trees (Disputes Between Neighbours) Act 2006 seeking orders regarding trees adjacent to her Lewisham property. 2In her application Ms Hurley has struck out the word "window" at question 1 of Form G: Tree Dispute Claim Details (High Hedges) and written in its place the words "back yard". Her answer to this question regarding the reason for the application thus reads: "To remedy, restrain or prevent a severe obstruction of sunlight to a back yard of a dwelling." 3Section 14B of the Act sets out who can make an application: 14B Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window [my emphasis] of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this part applies being situated on adjoining land. 4Section 14E(2) provides further clarity (with my emphasis added in bold): (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. 5When I explained these jurisdictional confines to Ms Hurley at the onsite hearing, she asserted that her application only concerns obstruction of sunlight to her back yard, and she hoped the Court might consider the matter anyway. However, as the sunlight obstruction is not one for which an application can be made under this Act, nor one for which the Court can make any orders, the application must be dismissed.