Taylor & anor v Smith & anor [2014] NSWLEC 1088

Land and Environment Court New South Wales

Medium Neutral Citation: Taylor & anor v Smith & anor [2014] NSWLEC 1088 Hearing dates: 13 May 2014 Decision date: 16 May 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; pruning ordered see paragraph [49] Catchwords: TREES [NEIGHBOURS] Hedge; sunlight and views; privacy issues; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Mosman Local Environmental Plan 2012 Cases Cited: Blau v Levi [2010] NSWLEC 1371 Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Golchin v Turner [2013] NSWLEC 1138 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Ms L and Mr M Taylor (Applicants) Mr P Smith and Ms M Crompton (Respondents) Representation: Applicants: Mr M Taylor (Litigant in person) Respondents: Mr G Prichard (Solicitor) Respondents: Prichard Lawyers File Number(s): 20098 of 2014

Judgment 1COMMISSIONER: The applicants purchased their Mosman property in 1991. In 2006, they completed construction of a three-storey dual occupancy. The applicants reside in the rear dwelling. The respondents' property is down slope and to the north of the applicants' property. 2In late 2005, before completion of the applicants dwelling, the respondents planted a row of Leyland Cypress along their southern boundary in order to provide a visual screen and to afford privacy to their backyard and the rear of their dwelling. 3The applicants have applied under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the twice yearly pruning of the Leyland Cypress, and a pot of bamboo, to a height of 1.2m above the top of the dividing fence. These orders are sought on the basis that the trees severely obstruct sunlight to windows of their dwelling and severely obstruct views from their dwelling. 4Section 14B states: An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land. 5The respondents oppose pruning to this level as they contend it will significantly reduce their privacy by opening up views of their outdoor entertaining areas from the top two levels of the applicants' dwelling. 6In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether Part 2A applies to the trees the subject of the application. 7Section 14A(1) states: This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). 8There is no dispute between the parties that trees 1-13, the row of Leyland Cypress, are planted so as to form a hedge and are in excess of 2.5 m tall. At the hearing one of the trees in the group of 1-9 was measured from the respondents' property at approximately 4.2m and the group of trees 10-13 was at least 6m tall. Therefore s 14A is satisfied for these trees. 9Tree 14 is a pot of bamboo. The applicants contend that this is part of the hedge by virtue of bamboo being prescribed in the Trees (Disputes Between Neighbours) Regulation) 2014 as a tree for the purpose of the Act and its location at the eastern end of the row of Cypress. 10In Blau v Levi [2010] NSWLEC 1371, the Court considered a Part 2A application involving containerised plants however in that matter, there were a number of containers arranged so as to form a hedge. 11In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of s 14A(1)(a). At [28] His Honour states: 28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present. 12I also note Preston CJ's findings in Johnson at [43], that in essence, a single tree cannot acquire the status of being planted so as to form a hedge if, at a later date, other trees are planted near it. In my view, the converse also applies that a single tree, planted at a later date, cannot acquire the status of a hedge by virtue of being planted, or in this case placed, near an existing hedge. The significance of timing of planting is discussed at length in Coleman & anor v Leddy & anor [2013] NSWLEC 1094 and in Golchin v Turner [2013] NSWLEC 1138. 13In this matter, the pot of bamboo has not been 'planted' with the other trees so as to form a hedge. Photographs in Exhibit 1 taken in late 2005 from the respondents' property show the newly planted Cypress but the pot of bamboo is absent. The bamboo is shown in a photograph taken in November 2012. 14Therefore, I am not satisfied to the extent required that T14, the pot of bamboo, is a tree to which Part 2A applies. If I am wrong in this I will discuss its impact on views and sunlight. 15Having determined the trees to which Part 2A applies, the next jurisdictional test to be considered is s 14E(2) which 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. 16If s 14E(2) is satisfied in the applicants' favour, the Court's jurisdiction to make orders under s 14D is engaged however this requires consideration of factors in s 14F. 17The applicants have nominated four windows for sunlight and five viewing locations; all are north facing. W1/V1 is the ground floor family room; W2/V2 is the adjoining ground floor kitchen. W3/V3 is the main bedroom on the first floor; W4/V4 is a second bedroom on the first floor; and V5 is from the study located in the attic. 18For the purpose of the hearing, both parties set up height poles. Poles on the applicants' property indicated two levels above the dividing fence - 1.2m and 1.5m. The 1.5m level is slightly below the current height of trees 1-9. The side setback of the applicants' property is about 3.7m from the dividing fence.