Foong & anor v James [2013] NSWLEC 1218

Land and Environment Court New South Wales

Medium Neutral Citation: Foong & anor v James [2013] NSWLEC 1218 Hearing dates: 8 November 2013 Decision date: 15 November 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: Drewett v Best [2010] NSWLEC 1305 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tooth v McCombie [2011] NSWLEC 1004 Category: Principal judgment Parties: Mr M C Foong & Ms W J Choong (Applicants) Ms M James (Respondent) Representation: Applicants: Mr M C Foong & Ms W J Choong (Litigants in person) Respondent: Mr B Campbell (Solicitor) Nicole Leggat & Associates File Number(s): 20660 of 2013

Judgment 1COMMISSIONER: The applicants have owned a property in Point Piper since 2007. They contend that a hedge growing on the adjoining property severely obstructs both sunlight to windows of their dwelling and views from their dwelling. 2To this end, they have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders requiring the pruning of the hedge to a height of 3.5m above the natural ground level (as measured from their property) and its subsequent twice yearly maintenance. 3The respondent contends that there is currently no severe obstruction of either views from the applicants' dwelling or sunlight to the nominated windows as a consequence of the hedge. The respondent maintains that the trees are important for privacy. The hedge was most recently pruned on 3 September 2013. 4Section 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the applicant's land or any view from a dwelling situated on the land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land. 5 In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether the trees are planted so as to form a hedge (s 14A(1)(a)). 6The respondent purchased her property in late 2004. At that time a row of Leyland Cypress trees was growing along the north-eastern boundary of the property above the tennis court. According to the respondent's affidavit, between December 2004 and April 2005, additional Leyland Cypress trees were planted along the north-western portion of that boundary. These trees were planted to screen views from the road into the respondent's property and presumably to provide some screening to a pool located below them. 7I am satisfied that the trees the subject of the application have been planted so as to form a hedge. Given the two discrete planting periods, trees 21-39 form Hedge 1 (the earlier planting) and Hedge 2 comprises trees 1-20 (the later planting). Although the respondent's land slopes generally from west to east, the trees have been pruned to an even level. The trees are in excess of 2.5m tall and therefore s 14A(1) is satisfied. 8The next relevant tests are 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. 9Section 14D(1) states that the Court may make any such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to or views from the applicant's dwelling if the obstruction occurs as a consequence of trees that are the subject of the application.