Hall & anor v Bezzina [2016] NSWLEC 1539

Land and Environment Court New South Wales

Medium Neutral Citation: Hall & anor v Bezzina [2016] NSWLEC 1539 Hearing dates: 14 November 2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Class 1 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; privacy; insufficient evidence to discount other potential causes of obstruction Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Drewett v Best [2010] NSWLEC 1305 McDougall v Philip [2011] NSWLEC 1280 Category: Principal judgment Parties: Judith & Graham Hall (Applicants) Marlene Bezzina (Respondent) Representation: Applicants: J & G Hall (litigants in person) Respondent: M Bezzina (Litigant in person) File Number(s): 202105 of 2016

Judgment 1. COMMISSIONER: The applicants purchased their Dover Heights property in 2005. At that time a row of seven Leyland Cypress trees was growing along the rear boundary of the respondent's property. The respondent's husband planted the trees in 1996 after the previous owners of the applicants' property added a second storey to their dwelling. Concerns about privacy prompted the planting. 2. The applicants contend that the trees severely obstruct sunlight to five nominated windows on the western side of their dwelling; three on the ground floor (windows 1-3) and two on the first floor (windows 4 &5). The applicants claim that the windows are obstructed in the following way: * Window 1 (W1) Bedroom – 80% loss all year; * Window 2 (W2) Bathroom – 100% loss all year; * Window 3 (W3) Living room [shown in the application claim form as one window but noted on site as two windows] -100% loss all year; * Window 4 (W4) Bedroom – 80% loss all year; * Window 5 (W5) Bathroom – 100% loss all year. 1. On the basis of this contention, the applicants have applied under s14B Part 2A of the Trees (Disputes Between Neighbours Act) 2006 (Trees Act) for orders seeking either the removal of the trees or pruning to a height of 2.6m above ground level (measured from their property) and their subsequent maintenance. The applicants' property is approximately 800mm lower than the respondent's land; the effective height sought by the applicants would be about 100mm above fence height. 2. The respondent last pruned the trees to be level with the top of the windows on the applicants' upper storey in April 2015. She has recently obtained permission from Waverley Council to reduce the height of the trees by up to 1.5m [confirmed by Mr Malcolm Coote, Waverley Council's Tree Management Officer who attended the on-site hearing]. During the hearing the trees were measured from the respondent's property to be a height of 5.5m above ground level. 3. The respondent does not wish to remove the trees or prune them to the height sought by the applicants as she values the privacy the trees afford to her principal living area and adjoining deck. She maintains that these areas would be directly viewed from the applicants' upstairs rooms. 4. During the hearing there was some discussion of alternative orders including the replacement of the trees with a species with a more open canopy or the removal of every second tree and pruning of the remainder.