Devile v Frith [2011] NSWLEC 1250

Land and Environment Court New South Wales

Medium Neutral Citation: Devile v Frith [2011] NSWLEC 1250 Hearing dates: 8 Aug 2011 Decision date: 08 August 2011 Jurisdiction: Class 2 Before: Hewett AC Decision: Application refused Catchwords: TREES [NEIGHBOURS]; hedge; severe obstruction of sunlight to a window; the undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: S & P Devile (Applicants)

D & R Frith (Respondents) Representation: S & P Devile (Applicants in Person)

D & R Frith (Respondents in Person) File Number(s): 20367 of 2011

Judgment 1This 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 Falkland Close, Winmalee, against the owners of trees growing on an adjoining property in Falkland Close. 2The applicants seek orders for the pruning of 27 trees on the basis that they severely obstruct sunlight to windows of their dwelling. The trees are growing along the southern side boundary of the adjoining property to the north. 3In their application, the applicants sought orders for the respondents to trim the trees to a height of 4 metres and to maintain the trees at that height. During the course of the hearing, the applicants changed that height to 7 m for pruning and for subsequent maintenance. 4The applicants' dwelling is oriented on a north-south axis with the main living areas having east and west aspects. Three of the four windows subject to the application are located on the northern side of the dwelling and one window is on the eastern side. 5W1 is a small window to a bathroom, W2 is a window to a study and W3 is a window to a garage. The application states that between May and August, all sunlight is lost to these windows. 6W4 is an east facing window to a laundry that the applicants contend loses 100% of sunlight between May and August. 7The applicants contend that the loss of sunlight to W1, W2, and W4 means that they need to have lights on at all times and that their floors remain damp with mildew forming. They also contend that the loss of sunlight means that the bathroom (W1) and study (W2) require heating and the rooms are constantly damp. 8The respondents say they value the trees for their privacy and the buffer they provide to noise and smoke that they say is emitted from the applicants' property.