Brindle and anor v Woznitza and anor [2013] NSWLEC 1005

Land and Environment Court New South Wales

Medium Neutral Citation: Brindle and anor v Woznitza and anor [2013] NSWLEC 1005 Hearing dates: 10 January 2013 Decision date: 10 January 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal of two trees ordered Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Mr D Brindle and Ms A Nassif (Applicants) Mr U and Mrs G Woznitza (Respondents) Representation: Applicant: Mr D Brindle (Litigant in person) Respondents: Mr U and Mrs G Woznitza (Litigants in person) File Number(s): 21023 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Wentworth Falls against the owners of a row of trees growing on an adjoining boundary. 2The applicants contend that the trees severely obstruct sunlight to 10 nominated windows of their dwelling. They seek general orders for the "taking of specified action to remedy the obstruction of sunlight" and "specified action to maintain a tree or trees at a certain height, width or shape". The applicants do not specify the actions but are content with either removal or pruning of the trees at the respondents' expense. 3The respondents do not object in principle to either removing the trees or to crown lifting them to a height of 5 m. In a letter to the applicants they propose a staged removal and replacement program with the applicants to pay for the removal of the trees and the respondents to replant and maintain the trees at a height that enables solar access for the applicants and maintains the respondents' privacy. The applicants do not agree to this proposal. 4In applications made under Part 2A there are a number of jurisdictional tests that must be satisfied before the Court's jurisdiction to make orders is engaged. 5The first of these tests is satisfaction of s 14A(1); that is, are the trees the subject of the application a hedge for the purpose of the Act? 6The diagram in the application claim form is confusing as it seems to include a number of deciduous birch and alder trees that are not discussed elsewhere in the claim form. At the on-site hearing it was clarified that the application applies to 32 Leyland Cypress trees growing on the respondents' side of the dividing fence starting at a point behind the respondents' shed and extending to the rear of their property. This equates to approximately tree 11 on the diagram. 7There is no dispute between the parties that the row of Leyland Cypress forms a hedge; the spacing, arrangement and species are typical of a hedge. The trees are approximately 18 m tall. Therefore s 14A(1) is satisfied. 8The next relevant test is found in s 14E(2). This states: (2) The Court must not make an order under this Part unless it is satisfied: (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. 9That is, the Act requires the obstruction of sunlight to be severe and to be caused by any of the trees. This must be applied to each of the nominated windows. 10The nominated windows are summarised in the table below. Level Window Room Aspect Other possible obstructions Hours of sunlight lost* Ground W1 Lounge NE 2 m verandah 6/6 " W2 Dining NE 5/6 " W3 Dining SE 3m verandah 6/6 " W4 Kitchen SE 4m verandah 6/6 " W5 Bathroom SE 4m verandah 6/6 " W6 Bathroom SE 4m verandah 6/6 Upper W7 Bedroom NE Narrow window 4.5/6 " W8 Bedroom NE Narrow window 4.5/6 " W9 Bathroom SE 6/6 " W10 Hall/ void SE 6/6