Rees & Anor v Chen [2017] NSWLEC 1502

Land and Environment Court New South Wales

Medium Neutral Citation: Rees & Anor v Chen [2017] NSWLEC 1502 Hearing dates: 12 September 2017 Date of orders: 12 September 2017 Decision date: 12 September 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views and sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, s 14B, Part 2A Cases Cited: Drewett v Best [2010] NSWLEC 1305 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Texts Cited: Nil Category: Principal judgment Parties: Geoffrey Rees (First Applicant) Janice Rees (Second Applicant) Michelle Chen (Respondent) Representation: Applicants: G & J Rees (Litigants in person) Respondent: Dr J Smith (Barrister) Solicitors: Dentons Australia Pty Ltd (Respondent) File Number(s): 149589 of 2017 Publication restriction: No

judgment: 1. COMMISSIONER: In August 2014 the applicants moved into their new home in Northwood. They maintain that at that time, they had the benefit of unobstructed views to the south-southwest of the Lane Cove River. The applicants contend that since purchasing their property, bamboo planted on the respondent's adjoining property has severely obstructed those views and will continue to do so if left unchecked. 2. The applicants have applied under s 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ('Trees Act') for orders seeking the pruning of three hedges on the respondent's property to a height of 1.5m above ground level and subsequent maintenance of those plants every three months. They also seek orders limiting any future planting of bamboo or similar hedging along the common boundary such that no future planting is any higher than 1.2m above ground level. 3. Since the filing of the application in May 2017, the respondent has undertaken some pruning of the trees, but not to the height sought by the applicants, as the respondent values the privacy the trees afford her pool and 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 if so, do they rise to a height of least 2.5m above ground level? 6. There are three groups of trees nominated by the applicants. Hedge 1 is a row/group of bamboo growing at the western end of a raised planter box constructed along the respondent's northern boundary. Hedge 2 is a row of Lillypillies towards the centre of the planter, and Hedge 3 is another row of bamboo towards the eastern end of the planter box. During the hearing, the applicants determined not to press Hedge 3. 7. The respondent, through her counsel, Dr Smith, accepts that the trees are trees to which Part 2A applies and I agree. 8. The next jurisdictional test is provided by s 14E(1)(a) which requires that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated. While the applicants remain dissatisfied with the outcome, I am satisfied to the extent required by s 14E(1)(a) that a reasonable effort has been made. 9. 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. While s 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, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. 2. 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.