Ireson & anor v Kelly and anor [2013] NSWLEC 1008

Land and Environment Court New South Wales

Medium Neutral Citation: Ireson & anor v Kelly and anor [2013] NSWLEC 1008 Hearing dates: 15 January 2013 Decision date: 15 January 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge - obstruction of sunlight and views Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: S & C Ireson (Applicants) R & P Kelly (Respondents) Representation: Applicants: S & C Ireson (Litigants in person) Respondents: R and P Kelly (Litigants in person) File Number(s): 20965 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicants in these proceedings are seeking orders for the pruning of trees they say are obstructing sunlight to, and views from, their property. They have made an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) against the owners of those trees. The properties are located in Castle Cove.

Background 2The applicants contend that when they purchased their property just over three years ago, they were able to see the ridge capping of the respondents' house and the water of Middle Harbour beyond that. Their position is that the trees have grown to a height that now obscures those views. They seek orders for the trees to be pruned by 150 - 300mm in order to restore the views they say they had when they purchased their property. 3The respondents do not wish to prune the trees any lower than they currently are as they value the trees for the privacy they afford their property, in particular the main bedroom located at the rear of their dwelling. The respondents moved into their dwelling about four years ago and state that when they did, the applicants' property was somewhat obscured by vegetation in the applicants' garden. This vegetation gave them some privacy from overlooking as did low branches on a Norfolk Island Pine growing at the rear of the property to the south which also adjoins the applicants' property. The respondents also consider that the original layout of the ground floor of the applicants' dwelling (now altered by the applicants) was such that more light was available to the part now in contention. 4When the applicants purchased their property they obtained permission from Willoughby Council to remove much of the vegetation from their block as well as the removal of low branches from the other adjoining property. 5It is accepted that the current situation for both parties is somewhat different to the conditions that existed when each of them purchased their properties.