Huang v Kennedy & anor [2015] NSWLEC 1487

Land and Environment Court New South Wales

Medium Neutral Citation: Huang v Kennedy & anor [2015] NSWLEC 1487 Hearing dates: 24 November 2015 Date of orders: 27 November 2015 Decision date: 27 November 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS]: Hedge; obstruction of views and sunlight; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Applicant: Jocelyn Huang Respondents: John and Roslyn Kennedy Representation: Applicant: Dr Huang (Litigant in person) Respondents: Mr M Staunton (Barrister)

Solicitors: Respondents: Jaku Legal File Number(s): 20785 of 2015

Judgment 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking the pruning to various heights of a row of x Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) growing on the adjoining Darling Point property. 2. The orders are sought on the basis that the trees severely obstruct sunlight to windows of the applicant's dwelling and severely obstruct iconic views of the Harbour Bridge from her dwelling. 3. The applicant owns a unit on the lower residential level of a four storey duplex – the main living areas and bedrooms are on the third floor. Initially the application under Part 2A of the Trees Act was made by the Strata/ Owners Corporation. However, as Part 2A does not generally relate to common property but to individual dwellings, two separate applications were made by two of the owners – one being the applicant in these proceedings and the other the owner of the unit above. The other proceedings were subsequently discontinued. 4. During the hearing the applicant agreed not to press the first of the two proposed orders which concerned the pruning back and maintenance of four trees 2m from the face of the building. These orders were erroneously copied from the original application made by the Strata/Owners Corporation and relate to matters more appropriately considered under Part 2 of the Act. 5. The remaining order seeks the pruning of nine trees to a level no greater than 300mm above the window sills marked W5 and W6 on the diagram included in the application claim form. These are two bedroom windows on the western side of the applicant's dwelling. 6. The respondents oppose these orders on the basis that, given the height and proximity of the adjoining property, the trees provide significant privacy and amenity to their principal area of private open space and their swimming pool. They contend that reducing the trees to the level sought by the applicant would result in direct overlooking from the applicant's property, and more importantly, from the unit above. 7. 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. 8. The first test is s 14A and whether the Part applies to the trees the subject of the application. 9. While there is some dispute as to when the trees were planted (see [24] –[28]), there is no dispute between the parties that the trees in question comprise two or more trees which are planted so as to form a hedge and which rise to a height of at least 2.5m above ground level. The trees are growing in a planter box along the eastern boundary of the respondents' property close to the dividing fence between the parties' properties. 10. Notwithstanding the disputed date of planting, I am satisfied that the trees the subject of the application are trees to which Part 2A applies. 11. 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. 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. 3. The applicant has nominated four windows and viewing points – all on the western side of her dwelling – the windows are numbered from south to north. Windows 5 and 6 (W5/V5, W6/V6) are bedroom windows; W7/V7 is a bathroom window; and W8/V9 is a window in a walk-in wardrobe. The main bedroom, living areas and associated balcony are at the northern end of the building.