Dimont v Bellamy [2017] NSWLEC 1506

Land and Environment Court New South Wales

Medium Neutral Citation: Dimont v Bellamy [2017] NSWLEC 1506 Hearing dates: 13 September 2017 Date of orders: 13 September 2017 Decision date: 13 September 2017 Jurisdiction: Class 1 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; sunlight and views; obstruction not severe 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 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Carolina Dimont (Applicant) Betty Bellamy (Respondent) Representation: Applicant: Ms C Dimont (Litigant in person) Respondent: Mr P Bellamy (Agent) File Number(s): 2017/153523

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 2.5m of three Norfolk Island Pines growing on the respondent's adjoining property in Tweed Heads. 2. The orders are sought on the basis that the trees are severely obstructing sunlight to windows of her dwelling and views of the nearby canal from her dwelling. 3. The respondent opposes the orders as she submits that the trees are healthy, well maintained and do not severely obstruct either sunlight or views. 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 at least 2.5m above ground level? 6. The applicant elected the height of 2.5m because it is specified in s 14A(1)(b) of the Trees Act. 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. 7. According to the respondent, the trees were probably planted in about 1980 and were well established when both parties purchased their properties. While the intent of the planter cannot be ascertained, the trees are linearly aligned and equally spaced at 3m centres. They are greater than 2.5m tall. I am satisfied that the trees could be reasonably considered to be trees to which Part 2A applies. 8. In accordance with s 14E(1)(a), I am also satisfied that a reasonable effort to reach agreement 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. 3. 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.