Brain & anor v Marsden & anor [2015] NSWLEC 1283

Land and Environment Court New South Wales

Medium Neutral Citation: Brain & anor v Marsden & anor [2015] NSWLEC 1283 Hearing dates: 29 July 2015 Date of orders: 29 July 2015 Decision date: 29 July 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; obstruction not severe; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Kenneth Royce Brain (First Applicant) Loretta Moy (Second Applicant) Christine Marsden (First Respondent) Stephen Rust (Second Applicant) Representation: Royce Brain and Loretta Moy, litigants in person (Applicants) Christine Marsden and Stephen Rust, litigants in person (Respondents) File Number(s): 20401 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. Houses sit closely together in Victoria Street, McMahons Point, where Mr Brain and Ms Moy ('the applicants') did some renovation works to their dwelling several years ago. Their neighbours to the west, Ms Marsden and Mr Rust ('the respondents'), planted three hedges near their common boundary because of their concerns regarding privacy and overlooking. As the hedges grew, the applicants became worried that their access to sunlight and views were obstructed. The neighbours have had several discussions trying to reach a compromise that satisfies all parties, but without success. Mr Brain and Ms Moy have applied to the Land and Environment Court seeking orders for hedges to be removed or pruned. Their application is made pursuant to s 14B, Part 2A, of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), which allows an application regarding obstruction of sunlight and views. Their application includes issues of potential damage, which may be considered under discretionary matters in part 2A, but are not jurisdictional tests. For orders to be made on the basis of potential damage an application under Part 2 of the Trees Act would be required. 2. The respondents do not wish to remove their hedges but have offered to prune them at certain heights.