Bradshaw v Liao & anor [2017] NSWLEC 1532

Land and Environment Court New South Wales

Medium Neutral Citation: Bradshaw v Liao & anor [2017] NSWLEC 1532 Hearing dates: 19 September 2017 Date of orders: 25 September 2017 Decision date: 25 September 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight and views; balancing of interests Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Freeman v Dillon [2012] NSWLEC 1057 Ghazal v Vella (No 2) [2011] NSWLEC 1340 Haindl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: James Bradshaw (Applicant) Jun Xun Liao & Hong Wen Hu (Respondents) Representation: Applicant: Mr J Bradshaw (Litigant in person) Respondents: Ms W Hong & Mr J Liao (Litigants in person) File Number(s): 2017/163318

JUDGMENT 1. COMMISSIONER: The applicant purchased his Cromer dwelling in February 2012. He contends that since that time, trees growing on the western rear side boundary of the respondents' property are now severely obstructing early morning sunlight to south-east and south facing windows of his dwelling and are also obstructing panoramic district and iconic water views from those and other windows and viewing positions within his dwelling. 2. The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of seven Leyland Cypress trees to a height of 3.2m above the pathway on the eastern side of his dwelling and their subsequent maintenance; the cost of these works to be borne by the respondents. The nominated pruning height, which is about one metre above the finished floor level of the middle storey, would enable sitting views from the dining room table which is situated in the south-eastern corner of the middle floor of the applicant's three storey dwelling. This height would also allow early morning sunlight into that portion of the dwelling throughout the year. 3. The respondents strongly object to these orders, and for the following reasons, do not wish to reduce the height of any of the trees (Exhibit 1). * the trees were well-established when the applicant purchased his property; * the part of the view affected by the trees is not iconic; * the trees provide privacy to the respondent's pool and back garden and to various parts of their dwelling from that portion of the applicant's property, particularly given the extensive decks and terraces on the applicant's dwelling; * the trees have now reached a height where they provide wind protection from strong south-westerly winds; * the trees shade the swimming pool in summer making it safer for their children to use; * the trees are part of the overall design of their garden; and * the applicant has not provided evidence of a severe obstruction of sunlight. 1. 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. 2. 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; and if so, do they rise to a height of at least 2.5m above ground level?