Kelly & anor v Dehnert & anor [2015] NSWLEC 1173

Land and Environment Court New South Wales

Medium Neutral Citation: Kelly & anor v Dehnert & anor [2015] NSWLEC 1173 Hearing dates: 20 May 2015 Date of orders: 20 May 2015 Decision date: 20 May 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part see paragraph [27] Catchwords: TREES [NEIGHBOURS] Hedge, obstruction of sunlight, obstruction of views. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: J & M Kelly (Applicants) R & JA Dehnert (Respondents) Representation: Applicants: Mr J Kelly (Litigant in person) Respondents: Mr S Leary (Solicitor), Haille Paine Solicitors File Number(s): 20154 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Bundanoon against the owners of trees growing on an adjoining property. 2. The trees in question are a staggered row of 72 Pinus radiata (Monteray Pine) growing adjacent to the northern boundary of the applicants' property. 3. The applicants are seeking orders for the removal of all of the trees on the basis that the trees severely obstruct sunlight to windows of their dwelling and severely obstruct views from their dwelling. 4. The respondents oppose these orders as the trees are valued for their role as a windbreak/ shelterbelt. 5. In applications made under Part 2A there are a number of jurisdictional tests that must be satisfied before the Court's power to make orders under s 14D is engaged. 6. The first of these tests is whether the trees are planted so as to form a hedge. The trees were small seedlings when the applicants bought their land in 1992 and are currently about 27m tall. The trees are numbered from east to west. The spacing between the trees varies from about 1m to 8m or thereabouts and effectively appear as linear groups along the boundary. 7. The respondents do not contest this jurisdictional test, and in my opinion, the trees satisfy the requirements of s 14A and the trees the subject of the application are trees to which the Part applies. 8. The next test is whether the applicants have made a reasonable effort to reach an agreement with the owners of the trees. Correspondence in the application claim form demonstrates these efforts and therefore s 14E(1) is satisfied. 9. Of relevance is s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied that: (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.