Smart & anor v Mann & anor [2013] NSWLEC 1179

Land and Environment Court New South Wales

Medium Neutral Citation: Smart & anor v Mann & anor [2013] NSWLEC 1179 Hearing dates: 24 September 2013 Decision date: 24 September 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; balancing of interests Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Haindl v Daisch [2011] NSWLEC 1145 Hinde v Anderson & anor [2009] NSWLEC 1148 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: P & S Smart (Applicants) G & L Mann (Respondents) Representation: Applicants: P & S Smart (Litigants in person) Respondents: R.J Baxter (Solicitor) Russell J Baxter Solicitor File Number(s): 20498 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicants purchased their elevated block of land in Tweed Heads West in 1999. The house they built was situated to take advantage of views from the rear of the property to the north through to the east of the distant ocean and coastal landscape - essentially from Tugan to Fingal Head. The front of the property faces the distant Border Ranges to the west. 2The applicants contend that palm trees planted by the respondents in 2002 severely obstruct both sunlight to windows of their dwelling and views from their dwelling. 3The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal or reduction and subsequent maintenance of the trees to a maximum height of 2.5m. 4The respondents have removed three of the 13 palms subject to the application and do not wish to take any further action as they value the remaining trees for the privacy they afford their dwelling.