Mayes v Keene [2016] NSWLEC 1604

Land and Environment Court New South Wales

Medium Neutral Citation: Mayes v Keene [2016] NSWLEC 1604 Hearing dates: 14 December 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; starting point for assessment of impact; discretionary matters Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: McDougall v Philip [2011] NSWLEC 1280 Category: Principal judgment Parties: Mr Russell Mayes (Applicant) Mrs Marjorie Keene (Respondent) Representation: Applicant: Mr R Mayes (Litigant in person) Respondent: Mrs M Keene (Litigant in person) File Number(s): 274694 of 2016

Judgment 1. COMMISSIONER: In 1991 the applicant purchased a large residential lot in Engadine on which there was a dwelling towards the front of the lot. In 2001 he lodged a development application with Sutherland Shire Council for subdivision of the lot into two. Development consent was granted in 2012. In February 2015 the council approved a development application for a new dwelling on the newly created lot. The location of the dwelling was constrained to some extent by a covenant restricting development away from the steeper rear section of the lot and by other council requirements. The approved dwelling was constructed between 2015 and 2016. 2. Growing at the rear of the respondent's equally large lot are many trees. The trees the subject of the application are four Cupressus sp (Cypress) growing in a row along the common side boundary fence and now opposite the applicant's newly constructed dwelling. The trees are to the northwest of the dwelling. Other nearby trees include several Melaleuca linariifolia (Snow in Summer) to the east of the Cypress trees along the boundary, a row of Cupressus macrocarpa 'Brunniana' (Brunnings Golden Cypress) planted across the respondent's block and then other assorted trees including a Lillypilly further to the east along the fence. The respondent states that the Cypress trees were planted by her late husband some 40 years ago. They are estimated by the applicant to be 14m tall. 3. The applicant contends that the Cypress trees severely obstruct sunlight to windows of his new dwelling and views from his dwelling. He has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the trees and their replacement with Melia azederach (White Cedar) – a deciduous native tree which the applicant contends is a less flammable species than the Cypress. 4. The respondent does not want to remove the trees as she values them for the privacy they afford her property. She has no objections to the applicant pruning any overhanging branches back to the fence line. 5. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged. 6. The first of these is whether the trees the subjects of the application are trees to which the Part applies. With the horticultural and arboricultural expertise I bring to the Court, I am satisfied that the trees are planted so as to form a hedge, whether two hedges or one, and meet the criteria in s 14A(1). 7. 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.