Constantinou & anor v Luxford-Pearson [2016] NSWLEC 1496

Land and Environment Court New South Wales

Medium Neutral Citation: Constantinou & anor v Luxford-Pearson [2016] NSWLEC 1496 Hearing dates: 27 October 2016 Date of orders: 27 October 2016 Decision date: 27 October 2016 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; trees pruned before hearing Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Applicants: Costa & Angela Constantinou Respondent: Jenice Luxford-Pearson Representation: Applicants: Ms A Constantinou (Litigant in person) Respondent: Ms J Luxford-Pearson (Litigant in person) File Number(s): 259510 of 2016

Judgment 1. COMMISSIONER: The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of a Leyland Cypress hedge growing on the respondent's property to a height of 2.5m. The orders are sought on the basis that the trees severely obstruct sunlight to windows of their Burradoo dwelling. 2. At the request of the parties the matter was set down for a consent orders hearing by telephone on the proviso that consent orders could only be made if I could be satisfied that the Court's jurisdiction to make those orders were engaged. 3. I am satisfied that the trees are trees to which the Part applies and are wholly located on the respondent's land. 4. The key jurisdictional test in applications made under Part 2A is found in s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied: (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. 1. At the commencement of the hearing I was informed that the hedge has been pruned. Given that information I am satisfied that there could be no severe obstruction of sunlight to windows of the applicants' dwelling. 2. As a consequence, as s 14E(2)(a)(i) is not satisfied, the Orders of the Court are: 1. The application is dismissed. ________________________ Judy Fakes Acting Commissioner of the Court