Wood v Barnes & anor [2017] NSWLEC 1106

Land and Environment Court New South Wales

Medium Neutral Citation: Wood v Barnes & anor [2017] NSWLEC 1106 Hearing dates: 23 February 2017 Date of orders: 01 March 2017 Decision date: 01 March 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; sunlight and views; jurisdictional tests; adequacy of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Catlin v King & anor [2016] NSWLEC 1603 Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Johnston v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Rodney Wood (Applicant) Rodney and Kathy Barnes (Respondents) Representation: Applicant: Mr R Wood (Litigant in person) Respondents: Mr R and Mrs K Barnes (Litigants in person) File Number(s): 368255 of 2016

Judgment 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders for the respondents to "prune and maintain trees acting as a privacy screen to the legal height of 2.5 meters". 2. The orders are sought on the basis that trees on the respondents' property severely obstruct sunlight to windows of his dwelling and severely obstruct views of the nearby reserve from the applicant's dwelling. 3. The respondents oppose these orders as they strongly value the privacy the trees afford their dwelling, particularly given the proximity of the applicant's dwelling to the common boundary and the extent of potential overlooking from that dwelling. 4. 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. 5. The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge and do they reach a height of at least 2.5m? 6. I note that it is a common misconception that 2.5m is the prescribed 'legal' limit to which hedges must be maintained. This is not the case. The Trees Act simply specifies 2.5m as a height the trees in a 'hedge' must have reached in order to engage the Court's jurisdiction. That is, if the trees forming the hedge are less than 2.5m, they are not trees to which Part 2A applies and thus would fall beyond the Court's jurisdiction.