Campbell v Voller [2010] NSWLEC 1351

Land and Environment Court of New South Wales

CITATION : Campbell v Voller [2010] NSWLEC 1351

APPLICANTS B & E Campbell PARTIES : RESPONDENTS M & P Voller

FILE NUMBER(S) : 20746 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Hedge; obstruction of sunlight and views; some views not from a dwelling; applicant dismissed on all counts

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 2/12/2010

DATE OF JUDGMENT: 2 December 2010

EX TEMPORE JUDGMENT DATE : 2 December 2010

APPLICANTS B & E Campbell [litigants in person]

LEGAL REPRESENTATIVES:

RESPONDENTS M & P Voller [litigants in person]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

2 December 2010

20746 of 2010 Campbell v Voller

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Allambie Heights against the owners of 2 hedges growing on an adjoining property. 2 The applicants are seeking the removal of the 8 trees that comprise the 2 hedges. At the on-site hearing the applicants stated they would be content if the hedges could be maintained at a nominated height. 3 Hedge 1 is a row of 6 Cupressus macrocarpa (Cypress) growing on the south-eastern boundary of the respondents' property beside their swimming pool. Hedge 2 comprises 2 xCupressocyparis leylandii (Leyland Cypress) growing on the north-eastern corner of the respondents' property adjacent to the upper portion of the applicants' driveway. 4 Both hedges satisfy s 14A of the Act in that they are groups of 2 or more trees planted so as to form a hedge, rise to a height of at least 2.5m, and are growing on appropriately zoned land. 5 The applicants contend that hedge 1 severely obstructs sunlight to 3 windows of their dwelling and severely obstructs views from their dwelling. 6 The respondents value this hedge for the privacy it provides for their pool and outdoor entertainment area. They do not want to remove the hedge but said that they are prepared to keep it at a reasonable height. They stated that they have pruned the hedge twice. 7 With respect to hedge 2, the applicants contend that the trees block their view of the footpath when they exit their driveway. As this is not a view from a dwelling, the Court has no jurisdiction to make any orders with respect to this hedge as it does not meet the jurisdictional test in s 14E(2)(a)(ii), that is the view must be from a dwelling. Therefore this element of the application is dismissed. 8 The hearing commenced with a site inspection and each of the windows and views, said to be obstructed, was considered. 9 Window 1 (W1) and window 2 (W2) are full-length windows on thesouthern wall of the living room. These windows generally face south across the main timber deck at the rear of the dwelling. Window 3 (W3) comprises a narrow window and adjacent glass door on the western side of the dining room and adjacent to W2. 10 Above all of these windows is a timber deck that extends approximately 2m from the southern wall of the upper storey of the house. 11 To the west of W1 and W2 are stairs leading down from the garage to the main deck about 1.5m below the garage door. W1 and W2 are setback from these stairs. 12 The applicants contend that hedge 1 severely obstructs sunlight to all 3 nominated windows in the afternoon from August to March. They say they lose about 4 hours of sunlight per day. They state that the greatest obstruction is caused when the hedge reaches a height of about 6m. 13 The views the applicants say hedge 1 is obstructing are generally district views to the west and southwest. The applicants nominated 5 viewing points in their application. View 1 (V1) is from W1, V2 from W2, V3 from W3, V 4 from the approximate centre of the main deck and V5 from the garden. At the site inspection furniture was moved in order to consider the view to the southwest/west from W1 and W2. 14 With respect to V5, the view from the garden, the Court has no jurisdiction to make any order with respect to this view point as it is not a view from a dwelling and therefore does not meet the jurisdictional test in s 14E(2)(a)(ii). 15 The rear of the applicants' property adjoins a council-owned bushland reserve. The majority of the views from all nominated viewing points are to the south and of the trees growing in the reserve. From V4, the deck, the view to the southeast is also available – this is of trees in the reserve as well as parts of nearby residential properties. There are 2 trees at the rear of the applicants' property that also form part of the view to the southeast. Distant views from the deck, especially to the south, are limited by the proximity of the trees in the reserve. 16 To the southwest the views are of hedge 1 but also a fig growing at the rear of the respondents' property.