Davis & anor v Millar [2016] NSWLEC 1256

Land and Environment Court New South Wales

Medium Neutral Citation: Davis & anor v Millar [2016] NSWLEC 1256 Hearing dates: 17 June 2016 Date of orders: 22 June 2016 Decision date: 22 June 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] : hedge; obstruction of sunlight; height of trees when property purchased; no proof of available solar access at time of purchase Legislation Cited: Trees (Disputes Between Neighbours) 2006 Blue Mountains Local Environmental Plan 2005 Cases Cited: McDougall v Philip [2011] NSWLEC 1280 Category: Principal judgment Parties: Rodney Davis and Barbara Davis (Applicants) Pauline Millar (Respondent) Representation: Applicants: R & B Davis (Litigants in person) Respondent: P Millar (Litigant in person) File Number(s): 154022 of 2016

Judgment 1. COMMISSIONER: In April 2011, the applicants purchased their Hazelbrook property. At the time, there was a row of Leyland Cypress trees growing along the southern boundary of the adjoining property to the north. 2. The respondent planted the trees in January 2003 in order to create a privacy screen between the applicants' property and other nearby properties which overlooked her dwelling. The applicants state that the trees were approximately 5-6m tall when they purchased their property and have now reached an estimated height of 10-12m. 3. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of the trees to a height of 2.5m above the concrete terrace on their property and subsequent maintenance at a height of 3m. The orders are sought on the basis that the trees severely obstruct sunlight to windows of their dwelling. The applicants' terrace is approximately 400-500mm above the natural ground level of the respondent's property. 4. The respondent opposes the pruning or removal of the trees. 5. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied in order to engage the Courts' powers under s 14D to make orders. If the jurisdictional tests are satisfied, the Court is not obliged to make the orders sought by the parties. 6. There is no dispute that the 12 trees are planted so as to form a hedge and are more than 2.5m tall; this satisfies s 14A(1) of the Act. The trees are wholly on the respondent's property. 7. As stated in their application claim form, the applicants first approached the respondent in regards to removing or pruning the hedge in June 2014. An offer of financial assistance was made. The applicants state that the respondent needed some time to think about it. The second approach was made two weeks later and the respondent made it clear that she did not want to remove or prune the trees as she valued them for privacy. As is her right, the respondent opted not to participate in an offer made by the Community Justice Centre on behalf of the applicants to mediate the dispute. It appears that there were no further discussions until the applicants filed the Class 2 application with the Court in February 2016. 8. I am satisfied that the applicants have a reasonable effort to reach an agreement with the respondent and thus the jurisdictional test in s 14E(1)(a) is satisfied. 9. The key jurisdictional test in applications made under Part 2A is found in s 14(E)(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. The applicants have nominated ten windows of their dwelling, which they contend, are severely affected by the respondent's trees. According to the diagram in the application claim form, the applicants' dwelling is orientated on a northeast to southwest axis on a block that is orientated from east to west. The trees are in a row that runs east to west along the dividing fence. The windows are described in the following table. 2. Windows 2-4 comprise a bay window as do windows 8-10. Windows 5-7 are in a central, recessed section of the dwelling, between the living and dining areas. Window Orientation Room W1 Northeast facing Living room W2 North facing Living room W3 Northwest facing Living room W4 West facing Living room W5 Northwest facing Glass sliding door to kitchen open plan living room W6 North facing Kitchen W7 Northeast facing Dining room W8 North facing Dining room W9 Northwest facing Dining room W10 West facing Dining room