Davine v Beckitt [2013] NSWLEC 1067

Land and Environment Court New South Wales

Medium Neutral Citation: Davine v Beckitt [2013] NSWLEC 1067 Hearing dates: 1 March 2013 Decision date: 09 April 2013 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed in its entirety Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; obstruction of sunlight; application dismissed Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Category: Principal judgment Parties: Robyn Davine (Applicant)

Patrick Beckitt (First respondent) Christopher Chojnicki (Second respondent) Representation: APPLICANT: Sarah Furlonger (Solicitor) Yates Beaggi Lawyers RESPONDENTS: Patrick Beckitt and Christopher Chojnicki (Litigants in person) File Number(s): 21265 of 2012

Judgment

Introduction 1Harbour views in Sydney can be highly sought after, particularly when those views include the Harbour Bridge. Houses are designed, and additions are made, with those views in mind. At the same time, the amenity of a neighbourhood is valued by residents, as is the amenity of individual properties. Privacy between closely built dwellings is also usually desirable. 2Robyn Davine, an owner of a Birchgrove property, has applied under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for the removal or pruning of neighbouring trees, on the basis that those trees are obstructing sunlight to, and views from, her property. The application is less than completely clear in some regards. On a plan of the applicant's dwelling only three windows are indicated as suffering an obstruction of views and sunlight. However, at the onsite hearing the applicant stated that this refers to three windows on each of the three levels (ground floor, first floor and second floor) so that there are nine relevant windows. 3The respondents, Patrick Beckitt and Christopher Chojnicki, are of the view that the application did not include the upper level of the applicant's dwelling, as this is an addition to the dwelling and, at Question 11 of the Tree Dispute Claim Details (Exhibit B) the applicants had answered "No" to the question: "Is this window part of an addition?" At the hearing the applicant took us to all three levels, the view was assessed from all three levels and the respondents aired their views regarding any obstruction. I shall give the applicant the benefit of the doubt, take her application at its highest, and consider all three levels. 4Although there may be nine windows and nine viewpoints in all, the application is also unclear regarding which windows suffer an obstruction of sunlight and which an obstruction of views. I therefore base the following decision on submissions made throughout the hearing.