Spencer v Messenger; Lord v Messenger [2012] NSWLEC 1074

Land and Environment Court New South Wales

Medium Neutral Citation: Spencer v Messenger; Lord v Messenger [2012] NSWLEC 1074 Hearing dates: 27 March 2012 Decision date: 27 March 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld; pruning ordered Catchwords: TREES [NEIGHBOURS]; Hedge, obstruction of sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Mr P Spencer (Applicant: 11/21159) Mr I and Mrs J Lord (Applicants: 11/21160) Mrs C Messenger (Respondent - both matters) Representation: Applicant (11/21159): Mr P Spencer (Litigant in person) Applicants (11/21160) I and J Lord (Litigants in person) Respondent: Mrs Messenger (Litigant in person) File Number(s): 21159 of 2011; 21120 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER:The Spencers and the Lords, applicants in these matters, live in two ground floor units of a three-storey unit block in Collaroy. Both couples purchased their properties in 2006. At that time there was an existing Lillypilly hedge growing along the rear boundary of Mrs Messenger's property, (the respondent). A photograph taken in 2008 from the Lord property shows the hedge to be about 4.5m tall. 2The Spencers and the Lords have applied to the Court for orders for the pruning, and subsequent maintenance, of the hedge to a height of 4.5m. They are prepared to pay for this. The applications are made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 3The applications are made on the basis that the Lillypillies severely obstruct morning sunlight, particularly in winter, but at other times during the year. The Lord's application also considers a loss of views of the sky from their dwelling. 4Mrs Messenger purchased her property about 3 years ago and she values the privacy the trees afford and the screen they provide between her property and the three-storey unit block. She would prefer to maintain the trees at their current height. 5These are two separate applications but as they relate to the same trees, the hearings were held concurrently. This judgment addresses both applications. 6The on-site hearing commenced with an inspection of the trees from the Messenger property. In applications made under Part 2A, there are several jurisdictional tests that must be satisfied. The first is s 14A(1) - that is, are the trees a hedge for the purpose of the Act. 7Section 14 A requires there be a group of at least two trees, planted so as to form a hedge, and which rise to a height of 2.5m. I am satisfied that the row of Lillypillies meets the requirements of s 14A(1). A 6m height stick was used to measure their height; at the time of the hearing the trees are on average about 7m high. 8At the hearing Mrs Messenger stated that she had removed a number of trees from her property, including another row of Lillypillies, some tree ferns and a dead eucalypt. When looking back towards the unit block from Mrs Messenger's backyard and pool, the top storey was visible but the ground and middle storeys were obscured by the Lillypillies. The top storey units have lattice panels and planter boxes along the east facing balconies.