Bramley & anor v Strata Plan No. 50371 [2014] NSWLEC 1037

Land and Environment Court New South Wales

Medium Neutral Citation: Bramley & anor v Strata Plan No. 50371 [2014] NSWLEC 1037 Hearing dates: 27 February 2014 Decision date: 04 March 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; sunlight and views Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Devile & anor v Frith & anor [2014] NSWLEC 1002 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Mr K and Mrs B Bramley (Applicants) Strata Plan No. 50371 (Respondent) Representation: Applicants: K & B Bramley (Litigants in person) Respondent: Mr B Rayner (Agent) File Number(s): 20903 of 2013

Judgment 1COMMISSIONER: The applicants have owned their Balmain property since 2000. At that time there was a row of Cupressus torulosa (Bhutan Cypress) growing along the rear of the respondent's property and adjoining the rear of the applicants' property. The applicants state that the trees were probably about 2.5m tall at that time. 2Since then the trees have grown considerably and the applicants contend they now severely obstruct sunlight to two windows of a secondary dwelling on their property and to two windows of the principal dwelling. They also maintain that the trees severely obstruct the district views they once enjoyed from an upstairs balcony. 3The applicants have applied under s 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the trees, at the respondent's expense, and their replacement with a more suitable species. 4The respondent values the trees for privacy and screening. In the alternative, it has proposed that three small trees be removed and the remaining trees reduced by a height equivalent to a third of the height of the tallest tree. The respondent considers that this should be done at the applicants' expense. 5In applications under Part 2A of the Act, 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)). 6According to material filed by Leichhardt Council, the trees were planted as a condition of development consent for alterations and additions to a former hotel, the respondent's property. Consent was granted in 1995. The approved landscape plan and conditions indicate that a row of either Bhutan Cypress or Port Jackson Pines were to be planted at 1.5 metre spacings along two boundary fences at the rear of the property and adjacent to the carpark. The plans also show the retention of a mature Canary Island Date Palm towards the centre of the rear fence. 7The trees vary in height with the tallest at the western end estimated at about 10m and the smallest at about 5.5 m beneath the Date Palm towards the centre of the row. 8The parties agree that the trees are planted so as to form a hedge. As the trees are in excess of 2.5m and on appropriately zoned land, s 14A is satisfied. 9The next relevant jurisdictional test is 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.