Maynard & anor v Mobbs & anor [2017] NSWLEC 1416

Land and Environment Court New South Wales

Medium Neutral Citation: Maynard & anor v Mobbs & anor [2017] NSWLEC 1416 Hearing dates: 21 July 2017 Date of orders: 03 August 2017 Decision date: 03 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: Trees [Neighbours] Hedge – obstruction of views and sunlight; not trees to which the part applies; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Johnston v Angus [2012] NSWLEC 192 McDougall v Philip [2011] NSWLEC 1280 Nolan & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339 Category: Principal judgment Parties: Georgina Maynard & Gary Wilkinson (Applicants) Karen Mobbs & Mark Pulham (Respondents) Representation: Applicants: G Maynard & G Wilkinson (Litigants in person) Respondents: K Mobbs & M Pulham (Litigants in person) File Number(s): 78467 of 2017

judgment 1. COMMISSIONER: The applicants purchased their Clovelly property in 2010 about 15 months after the respondents purchased their property. The applicants contend that trees growing on the respondents' property, along the common boundary, are severely obstructing both sunlight to windows of their dwelling, and views, including district and ocean views, from their dwelling. They 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 and their annual maintenance.

Jurisdiction 1. Section 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, however the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. 2. 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. 3. The first test, in s 14A(1)(a) 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? 4. If the trees are trees to which Part 2A applies, the next relevant test 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. 1. If the tests in s 14E(2) are subsequently met, the Court's jurisdiction is engaged and the Court can consider what, if any, orders should be made. This requires consideration of a number of discretionary matters in s 14F of the Trees Act.