Nicolson v Fekete & anor [2012] NSWLEC 1281

Land and Environment Court New South Wales

Medium Neutral Citation: Nicolson v Fekete & anor [2012] NSWLEC 1281 Hearing dates: 27 September 2012 Decision date: 09 October 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; pruning ordered on an annual basis Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; obstruction of views; balancing of interests Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Applicant: Colin Nicolson Respondents: Attila & Janene Fekete Representation: Applicant: Mr C Nicolson (litigant in person) Respondent: Mr C McCooe (solicitor) Respondent: McCooe & McCooe Solicitors File Number(s): 20725 of 2012

Judgment 1COMMISSIONER: The applicant in these proceedings has owned his ground floor unit in Neutral Bay since 1994. In 2001, the respondents planted a row of eight x Cupressocyparis leylandii (Leyland Cypress) in order to reduce the visual impact of the applicant's unit block from their property and to provide a degree of privacy for residents of both properties. 2The applicant contends that the trees now severely obstruct sunlight to windows of his dwelling and severely obstruct views from his dwelling. He has made an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of the trees or, in the alternative, the pruning of the trees to an appropriate height and their subsequent maintenance. While the application form did not specify what an 'appropriate' height may be, during the hearing the applicant nominated a maximum height of 2.5m as a height he would be satisfied with. 3The respondents have proposed alternative orders suggesting pruning to a height of 3m within 60 days of the date of the orders with both parties contributing 50% of the cost. 4The trees are planted on the southern boundary of the respondents' front garden. At the hearing they were measured to be, on average, about 4.3m high. 5In applications made under Part 2A of the Act, there are a number of jurisdictional tests to be satisfied before any orders can be considered. 6The first test is in s 14A(1) that requires that in order for the Act to apply, the trees must be planted so as to form a hedge and, rise to a height of at least 2.5m. There is no dispute between the parties that the trees form a hedge for the purpose of the Act: a position with which I concur. 7The next relevant test is s 14E(2) which states: (2)The Court must not make an order under this Part unless it is satisfied that: (a)the trees concerned: (i)are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii)are severely obstructing a view from a dwelling situated on the applicant's land, and (b)the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.