Solo v Sverkidis & anor [2017] NSWLEC 1198

Land and Environment Court New South Wales

Medium Neutral Citation: Solo v Sverkidis & anor [2017] NSWLEC 1198 Hearing dates: 20 April 2017 Date of orders: 20 April 2017 Decision date: 20 April 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; Obstruction of sunlight and views; no currently severe obstruction of views; sunlight - sufficiency of evidence; likely obstructions for other reasons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Category: Principal judgment Parties: Dr Eric Solo (Applicant) Mr Jim Sverkidis (First Respondent) Mrs Anna Sverkidis (Second Respondent) Representation: Applicant: Dr Solo (Litigant in person) Respondent: Ms Minos (Agent) File Number(s): 359122 of 2016 Publication restriction: No

judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 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 fence height of a row of conifers, or preferably, the removal of the trees. The orders are sought on the applicant's contention that the trees severely obstruct views from his dwelling and severely obstruct sunlight to windows of his dwelling. 2. The respondents reject these orders on the basis that pruning to fence height would remove almost all foliage and thus be tantamount to removing the trees. The respondents, and their tenant, value the trees for the amenity they afford their property, in particular the privacy they provide, the filtering of air pollution from the nearby Princes Highway, and their role as a windbreak. The respondents' agent indicated that the trees in question are one part of a perimeter planting of trees. 3. 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. 4. 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 are they at least 2.5m tall. 5. The diagram in the application claim form illustrates 15 trees – numbered from east to west. The applicant acknowledged that determining the actual number of trees was difficult as he was unable to enter the respondents' property. During the on-site hearing it was confirmed that there are 8 or 9 trees that were planted along the respondents' southern boundary in about 1999. The trees range considerably in height and diameter; the tallest and largest trees are at the western end, the smaller trees are at the eastern end. This may be due to a mix of cultivars. There was some discussion as to whether Tree 9, the westernmost and largest tree, was planted at a later stage. There are also several stumps of trees which have been relatively recently removed. A number of newly planted trees were noted. The new trees, apart from being planted in a separate event, are not trees to which Part 2A applies as they are less than 2.5m tall. 6. I am satisfied that the 8-9 mature trees are trees to which the Part applies. 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.