Bagley v Guthrie [2012] NSWLEC 1252

Land and Environment Court New South Wales

Medium Neutral Citation: Bagley v Guthrie [2012] NSWLEC 1252 Hearing dates: 29 August 2012 Decision date: 07 September 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views and sunlight; insufficient evidence; discretionary matters Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Johnson v Angus [2012] NSWLEC 192 Drewett v Best [2010] NSWLEC 1305 Ball v Bahramali [2010] NSWLEC 1334 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Mr J Bagley (Applicant) Ms S Guthrie (Respondent) Representation: Applicant: Mr J Bagley (Litigant in person) Respondent: Mr J Johnson (Barrister) Respondent: Fox & Staniland Lawyers File Number(s): 20572 of 2012

Judgment 1COMMISSIONER:This application concerns a row of Cupressocyparis leylandii (Leyland Cypress) growing along the eastern boundary of a property in Turramurra. 2The applicant has made an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders to remedy, restrain or prevent a severe obstruction of views from his dwelling and sunlight to windows of his dwelling. In his application, the applicant seeks orders for the pruning of the trees to a maximum height of 4.5 metres and their subsequent maintenance to that height every two to three years. During the course of the hearing, the applicant considered that a height of 5.3m for the younger elements of the hedge would be acceptable and a maximum height of 8m for the older trees. 3Amongst other things, the respondent values the trees for the privacy they afford and the green backdrop they create. While she has had some trees pruned, she is unwilling to reduce the height of the trees to the heights sought by the applicant. 4The respondent's position is that the majority of the trees do not satisfy the jurisdictional tests in s 14E(2)(a). However, if the Court finds that this section is satisfied for some trees, the respondent submits that a consideration of s 14E(2)(b) would result in no orders being made for any further interference with the trees. 5The hearing was held on site. Both parties had obtained arboricultural reports however, only the respondent's arborist, Mr Guy Paroissien, was present at the hearing. 6In applications made under Part 2A, there are a number of jurisdictional tests to be satisfied before the Court's jurisdiction to make orders is engaged.