Schutz v Kotsis [2016] NSWLEC 1026

Land and Environment Court New South Wales

Medium Neutral Citation: Schutz v Kotsis [2016] NSWLEC 1026 Hearing dates: 22 January 2016 Date of orders: 22 January 2016 Decision date: 22 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] : Hedge obstruction of views and sunlight; obstruction not yet severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Hornsby Local Environmental Plan 2013. Cases Cited: Devile & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Schutz v Kotsis [2010] NSWLEC 1332 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Valdis Schutz (Applicant) Faye Kotsis (Respondent) Representation: Applicant: Mr V Schutz (Litigant in person) Respondent: Mr S Deane (Agent) File Number(s): 20945 of 2015

Judgment 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to a height of 2-2.25m of a row of 68 Leyland Cypress trees planted on the adjoining property along part of the common boundary. He also seeks orders for the ongoing maintenance/ hedging of the tops and sides of the trees. 2. The orders are sought on the basis that the trees obstruct sunlight to windows of the applicant's dwelling and views from his dwelling. The applicant is concerned that as the trees continue to grow the obstruction will increase. 3. The applicant's Arcadia property is zoned RU4 – Primary Production Small Lots in Hornsby Local Environmental Plan 2013. In 2013 Part 2A of the Trees Act was reviewed and minor amendments made, including land to which Part 2A applies. As a consequence of the amendments, Part 2A now applies to land zoned "rural residential" or land having the substantial character of a zone so designated (s 4(1)(a)). In an earlier decision in a Part 2 application involving the parties in this matter I determined that I was satisfied that the land had the substantial character of 'rural residential' (see Schutz v Kotsis [2010] NSWLEC 1332 at [5]). 4. It is common ground that the trees are growing on the adjoining property and were planted so as to form a hedge and remain so. The trees are an average of about 4m tall. Therefore, the trees are trees to which Part 2A applies. 5. 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.