Doerner & anor v Vincent [2015] NSWLEC 1186

Land and Environment Court New South Wales

Medium Neutral Citation: Doerner & anor v Vincent [2015] NSWLEC 1186 Hearing dates: 27 May 2015 Date of orders: 27 May 2015 Decision date: 27 May 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; views and sunlight; not a severe obstruction Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Applicants: Mr R Doerner and Ms L Dixon Respondent: Ms J Vincent Representation: Applicants: Litigants in person Respondent: Litigant in person File Number(s): 20127 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicants have applied under s14 B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the pruning to 3m of a row of trees growing on an adjoining property. The orders are sought on the basis that the trees are severely obstructing views of the ocean from their dwelling and sunlight to the windows of a bedroom. The applicants are also concerned that the trees will continue to grow and further obstruct their views. 2. The respondent values the trees for the privacy they afford the family's swimming pool and backyard. 3. In applications made under Part 2A of the Act there are a number of jurisdictional tests that must be satisfied before the Court's powers to make orders under s 14D are engaged. 4. Section 14A(1) states that Part 2A only applies to groups of two or more trees planted so as to form a hedge and which rise to a height of 2.5m. The trees in question are a row of closely planted Leyland Cypress trees which have been clipped into a rectilinear form. They are more than 2.5m tall. Therefore, I am satisfied that the trees the subject of the application are trees to which the Part applies. 5. Section 14E(1)(a) requires an applicant to have made a reasonable effort to reach agreement with the owner of the trees in question. On the basis of the material tendered by both parties, I am satisfied that this has occurred. 6. The key test in applications made under Part 2A is found in 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. 1. While s 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 a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. 2. The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.