Lazos v Xu & anor [2017] NSWLEC 1420

Land and Environment Court New South Wales

Medium Neutral Citation: Lazos v Xu & anor [2017] NSWLEC 1420 Hearing dates: 4 August 2017 Date of orders: 04 August 2017 Decision date: 04 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; insufficient evidence to prove severity of obstruction 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 Johnston v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: George Lazos (Applicant) Xian Lai Xu (First respondent) Ke Qun Du (Second respondent) Representation: Applicant: G Lazos (Litigant in person) Respondents: X Xu (Litigant in person) File Number(s): 63401 of 2017

judgment 1. COMMISSIONER: The applicant owns a property in Pennant Hills. He has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders for either the removal of a row of conifers growing on the respondents' property and their replanting away from the fence line or replacement with a smaller species. The applicant considers that pruning the trees is not an option. 2. The orders are sought on the applicant's contention that the trees severely obstruct sunlight to windows of his dwelling and views from his dwelling. 3. The applicant claims that the trees have been planted too close to the fence and are growing over the fence into his property. He maintains that the trees will only get bigger and that he shouldn't have to pay to maintain them away from his property. 4. The respondents maintain that there is no severe obstruction of sunlight to the applicant's dwelling. I note in the respondents' statement (Exhibit 1) that the trees indicated on the aerial and photographs are not the trees the subject of the application. The trees indicated by the respondents are trees in their front garden. It was confirmed on site that the trees about which the applicant complains are in the respondents' rear garden. 5. The hearing was conducted on site. Because of past conflict between the parties, each party stayed on their own property but placed themselves close enough to the boundary to hear what was being said. Clear instructions were given that neither party was to say anything to me without the other hearing. At the end of the site view, and having heard from the parties, rather than deliver an extemporaneous judgment on site, I reserved the judgment for delivery by telephone later in the day. This decision was based on the increasingly belligerent manner of the applicant and his intimidating behaviour towards the respondents. In my view, some distance between the parties was warranted. 6. 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. 7. 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 above ground level? 8. The trees the subject of the application are a row of 14 Leyland Cypress (possibly the cultivar 'Naylor's Blue). The row incorporates two established specimen trees, a Pittosporum undulatum (Native Daphne) and a Chorisia speciosa (Floss Silk Tree). These two trees are not trees to which Part 2A applies as they are individual specimens (see Johnston v Angus [2012] NSWLEC 192 at [43]). The trees are growing at the rear of the respondents' property along the common side boundary between the parties' properties, between the rear of the respondents' garage and their back fence. The trees are to the northeast of the applicant's dwelling. Almost all of the trees are in excess of 2.5m tall. 9. I am satisfied that the conifers are trees to which Part 2A of the Trees Act applies. 10. 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. 1. The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows. 2. In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.