Lydiard v Rollason [2011] NSWLEC 1365

Land and Environment Court New South Wales

Medium Neutral Citation: Lydiard v Rollason [2011] NSWLEC 1365 Hearing dates: 7 December 2011 Decision date: 20 December 2011 Jurisdiction: Class 1 Before: Galwey AC Decision: (1)The respondent is to remove trees T11 and T12 within 60 days of the date of these orders. Catchwords: TREES [NEIGHBOURS] - Hedges; obstruction of view; obstruction of sunlight; "to form a hedge"; removal ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ball v Bahramali & Anor [2010] NSWLEC 1334 Pham v Papaioannou [2011] NSWLEC 1044 Wisdom v Payne [2011] NSWLEC 1012 Category: Principal judgment Parties: V Lydiard (Applicant)

L Rollason (Respondent) Representation: A Pearman (Applicant)

M Staunton (Respondent) File Number(s): 20748 of 2011

Judgment 1ACTING COMMISSIONER: Rockwall House is an historic property in Potts Point. Ms Rollason, its owner and the respondent in this matter, uses the house as a private residence. The property includes a garden with established trees. To the east of the property is a block of apartments. The owner of one of those apartments, Ms Lydiard, claims that she has lost access to views from, and sunlight to, her dwelling as a result of trees in three hedges in the garden of Rockwall House. She seeks the removal of some of these trees and the pruning of others. 2Ms Lydiard claims that: (a)Hedge 1 obstructs sunlight to her two windows and should be pruned to a height no greater than 4 m. (b)Hedge 2 obstructs sunlight to and views from her two windows and that part of this hedge should be pruned to a height of no more than 4 m, and part of this hedge should be removed. (c)Hedge 3 obstructs sunlight to and views from her two windows and should be removed. 3Ms Lydiard also wants any new or existing plantings along two boundaries of Rockwall House to be maintained at a height no greater than 4 m. 4Ms Rollason submits that Hedges 2 and 3 are not hedges and that trees in Hedge 1 do not severely obstruct sunlight to, or views from, Ms Lydiard's dwelling. 5Ms Rollason also submits that the Court cannot make orders regarding future plantings. 6The orders that Ms Lydiard seeks differ from those in her application, as she now contends that additional trees obstruct sunlight. 7Ms Rollason claims that the Court should only consider the orders submitted in the application as she has not had an opportunity to respond to the claims of the additional obstruction of sunlight by these trees. 8Ms Rollason submits that Ms Lydiard did not make reasonable effort to reach agreement with her about issues regarding the trees. 9The parties disagree on the size of the trees at the time that Ms Lydiard purchased her property. 10The application to the Court is made under Part 2A of the Trees (Disputes Between Neighbours) Act 2006. To determine what orders, if any, the Court should make, I must determine: (a)Did Ms Lydiard make reasonable effort to reach agreement with Ms Rollason? (b)Do the trees form hedges? (c)If they do form hedges, do they severely obstruct sunlight to Ms Lydiard's windows or views from her dwelling? (d)If they do create a severe obstruction of sunlight or views, what orders would be appropriate? (e)Should an obstruction of sunlight be considered for trees T1, T2, T3, T4, T5, T9, T9A, T11 and T12 in addition to the obstruction of views by these trees as claimed in the original application? (f)Can the Court make orders regarding future plantings?