Doyle v Tu [2023] NSWLEC 1535

Land and Environment Court New South Wales

Medium Neutral Citation: Doyle v Tu [2023] NSWLEC 1535 Hearing dates: 15 June 2023 Date of orders: 15 September 2023 Decision date: 15 September 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders are: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – balancing sunlight and privacy – are hedge trees causing damage Legislation Cited: Dividing Fences Act, 1991, s 13A Trees (Disputes between Neighbours) Act 2006, Pts 2, 2A, ss 7, 8, 9, 10, 12, 14A, 14B, 14C, 14D, 14E Cases Cited: Bhuta v Cefai [2023] NSWLEC 1330 Freeman v Dillon [2012] NSWLEC 1057 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Liang & anor v Marsh & anor [2011] NSWLEC 1026 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Wisdom v Payn [2011] NSWLEC 1012 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Jennifer Anne Doyle (Applicant) Viola Tu (First Respondent) Davy Nai Hung Fok (Second Respondent) Representation: J Doyle (Self-represented) (Applicant) V Tu (Self-represented) (First Respondent) D Fok (Self-represented) (Second Respondent) File Number(s): 2023/87207 Publication restriction: Nil

Judgment 1. COMMISSIONER: Ms Jennifer Doyle, the applicant, shares a common boundary with the respondents, Ms Viola Tu and Mr Davy Nai Hung Fok, between their properties in Dural. The level of the applicant's land is about 700mm lower than the respondents' land and the respective properties are accessed from different streets. The common boundary runs from east to west and the applicant's north side boundary is the respondents' rear boundary. 2. Ms Doyle occupied her property 35 years ago and she said the respondents planted a row of nine Cupressocyparis leylandii (Leyland Cypress) (the trees) about 23 years ago at the rear of their back yard. The applicant noted that the trees had initially grown to about 5 metres (m) tall, but were pruned to a height around 2.5 m about 10 years ago and have been maintained around that height up to the present. 3. The applicant requested that the respondents remove the trees and offered, with her son, to remove them from the respondents' land. The respondents have a low second hedge of Box trees on their side of the Cypress trees and the applicant preferred that only the Box hedge be retained, and a low fence topped with lattice be installed along the common boundary to allow increased winter sunlight penetration to the applicant's yard. 4. The respondents resisted removal or height reduction of the Leyland Cypress trees as they value the privacy the trees provide in the back of their dwelling and in their rear yard, and the trees' aesthetic contribution to their garden. In response to Ms Tu's claim that she could view the applicant in her kitchen in the absence of the trees, Ms Doyle proposed installing a blind, but the respondents were not satisfied with this solution. The parties conducted mediation through a Community Justice Centre (CJC) but no agreement was reached. 5. Consequently, Ms Doyle submitted an application, pursuant to s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act). The application under Pt 2 of the Trees Act relates to alleged past damage to the common boundary fence as a result of the trees, and future damage to an adjacent partially constructed retaining wall. Ms Doyle also noted that the sewer main which ran near the trees had been damaged, and claimed the trees were a likely cause. Under Pt 2A of the Trees Act, the applicant claimed that the respondents' trees form a hedge which severely obstructed sunlight to her dwelling and courtyard. Ms Doyle sought the following (summarised) orders: 1. The respondents, at their expense, shall remove all nine Leyland Cypress trees, including roots protruding into the applicant's land and partially erected retaining wall. The applicant will subsequently plant shrubs on her side, pending the new common boundary fence. 2. If order (1) is not granted, alternatively, the respondents, at their expense, shall prune and maintain the Leyland Cypress trees to a maximum height of 2 m and remove trees to reduce the length of the hedge by 1.5m at its western end and by 1m at its eastern end.