Wesiak v DA [2023] NSWLEC 1063

Land and Environment Court New South Wales

Medium Neutral Citation: Wesiak v DA [2023] NSWLEC 1063 Hearing dates: 30 January 2023 Date of orders: 15 February 2023 Decision date: 15 February 2023 Jurisdiction: Class 2 Before: Washington AC Decision: The Court orders that: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14B, 14D, 14E, 14F Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152 Category: Principal judgment Parties: Bernd Wolfgang Wesiak (Applicant) DA (First Respondent) AM (Second Respondent) Representation: Bernd Wolfgang Wesiak (Self-represented) (Applicant) DA and AM (Self-represented) (Respondents) File Number(s): 2022/330525

JUDGMENT 1. COMMISSIONER: The applicant, Mr Bernd Wesiak, has applied to the Court pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders relating to a row of five Magnolia grandiflora 'Teddy Bear' trees that grow on his neighbour, DA's property along their shared side boundary. Mr Wesiak contends that due to their height and density, the trees, which collectively form a hedge, are severely obstructing sunlight to his rear courtyard, clothesline, and windows to both his garage and dining room. 2. Both the applicant and respondents were self-represented, and the hearing was held partly on Mr Wesiak's property in Lilyfield and partly on the neighbouring property belonging to DA. Both respondents were represented by DA in proceedings. 3. The two adjacent properties are situated at different levels, with Mr Wesiak's property sitting approximately 900mm higher than its neighbour. The trees in question are positioned at the lower level, and currently range in height from 5m (T2 and T4) to 6.7m (T1). A timber-topped colorbond fence divides the two properties which, due to the step in landform, is 1.8m high on Mr Wesiak's side and 2.7m high on the neighbouring property. As a result, the trees in question project between 2.3-4m above Mr Wesiak's fenceline. All five trees have been assessed as being in good health and vigour.