Thank you for the confirmation of our advice given to you the month previously (13th February 2012). To ensure a complete understanding between us we will be stating pertinent information about this advice and a quick recap. The issue here is that you have a neighbour who has a series of perennial woody plants that you take as unfair due to the lack of sunshine you get because of it.
In accordance with the NSW law, section 14A of the Trees (Disputes Between Neighbours) Act (2006), you as the owner of your dwelling, may make an application to the court for an order to remedy, restrain or prevent severe obstruction to your window of the sunlight or your view caused by the trees next door. This law is applicable only when 2 or more obstructing woody perennials that grow to form a hedge of at least 2. 5 metres height.
If you do make an application the court will then consider whether the trees existed prior to the dwelling, whether they have any historical, cultural, social or scientific value and the amount and also the court will take into account the hours per day, time and year of any sunlight that is lost as a result of the obstruction. It should be remembered that this very same law also tells you to give 21 days notice to your next door neighbour that you are lodging an application and what you are seeking. The court will only grant you remedy if you have tried to make a reasonable effort to reach an argument with the party involved.
Slick and Slack Lawyers are aware that you have engaged in an effort to approach your neighbour in a non-confrontational manner, this gave the appearance that the matter may have been sorted, however, the other side failed to do as they perceived you to be a menace. There is now an AVPO against you. As this matter has now led to more problems with your neighbour, we strongly recommend that you do not go anywhere near your neighbour. Going forward, get back to us with what you think we should do in relation to the second matter about the hedge of trees including if you would like us to launch an action in court about your matter. Yours Sincerely Lourine Singh Slack and Slick Lawyers.
Australian Guide to Legal Citation (2010) Kirby, M. D. , “Precedent, Law, Practice and Trends in Australia” (2007) 28 Australian Bar Review 243 1 A F Mason, ”The Use and Abuse of Precedent” (1988) 4 Australian Bar Review 93, at 93. 2 As late as 1975, the High Court of Australia emphasised the desirability of following even non-binding English judicial authority. See Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 341, 352.
Piro v W Foster & Co Ltd (1943) 68 CLR 313 at 320; Trimble v Hill (1879) 4 App Cas 342 at 345. But see Parker V The Queen (1963) 111 CLR 610 at 632 per Dixon CJ. 3 Australian Constitution, s 74. 4 Skelton v Collins (1966) 115 CLR 94, per Kitto J at 104; Viro v The Queen (1978) 141 CLR 88, per Gibbs J at 118. 5 Kirby, M. D. , “Precedent, Law, Practice and Trends in Australia” (2007) 28 Australian Bar Review 243. 6 M. D. Kirby, Judicial Activism: Authority Principle and Policy in the Judicial Method (The Hamlyn Lectures, 55th series) (2004).
Gray v Motor Accident Commission (SA) (1998) 196 CLR 1 at 12-13 , 27 . 45_47 -; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 602 ; Pilmer v Duke Group Ltd (2001) 207 CLR 165 at 230 ; Batistatos v Road Traffic Authority (NSW) (2006) 80 ALJR 1100 at 1132 . 8 Kirby, M. D. , “Precedent, Law, Practice and Trends in Australia” (2007) 28 Australian Bar Review 243. 9 M D Kirby ” Judicial Activism:: Power Without Responsibility? No, Appropriate Activism Conforming to Duty” (2006) 30 Melbourne University Law Review 576.