Atkinson v Matherson

[2011] NSWLEC 1121

Land and Environment Court

New South Wales

Medium Neutral Citation:

Atkinson v Matherson [2011] NSWLEC 1121

Hearing dates:

11 March 2011

Decision date:

11 March 2011

Jurisdiction:

Class 2

Before:

Moore SC, Galwey AC

Decision:

(1)The respondent is to prune all nine Leighton Green trees located along the rear boundary of her property to a point 300 millimetres below the height of the upper side of the kitchen windowsill of the applicant's unit;

(2)The respondent is to prune the nine Leighton Green trees, in future, at such intervals as may be necessary, so that the height of those trees does not exceed the height of the upper side of the kitchen window sill on the applicant's property;

(3)Pruning in order 1, that is the initial pruning, is to be carried out within sixty days of the date of these orders;

(4)Should the respondent seek access to the common property of 88 Wood Street for the purposes of carrying out the pruning in either order 1 or order 2, the applicant is to use her best endeavours to obtain the consent of the body corporate for access for those purposes; and

(5)The pruning is to be carried out at the cost to the respondent.

Catchwords:

Hedge; Severe obstruction of view; severe obstruction of sunlight to a window

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128

Category:

Principal judgment

Parties:

A Atkinson (Applicant)

C Matherson (Respondent)

Representation:

A Atkinson (Applicant in person)

C Matherson (Respondent in person)

File Number(s):

20962 of 2010

Judgment

1. Leighton Green cypress trees are regularly planted in urban areas to provide hedges that afford privacy and shading to those who plant them. They are quick-growing, are comparatively robust and when pruned are comparatively indestructible. They are regarded by many as a pest but are nonetheless used widely for hedging purposes.

1. In these proceedings, Ms Atkinson makes an application to the Court pursuant to Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act) concerning nine Leighton Green trees located on the property immediately adjacent to and slightly down slope of the block of units within which she resides.

1. There are a number of matters that we need to address in establishing that we have jurisdiction with respect to the trees. First, we observe, for completeness, that, although the trees are separated from the outer boundary wall of Ms Atkinson's unit and are thus separated by a strip of common property of the block of units within which she resides, consistent with the decision of the Court in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 , the very first case decided under this legislation, we are satisfied that, for the purposes of the jurisdictional test of the trees being located on land adjoining the applicant's land, the gap caused by the common property does not require us to set aside the application.

1. Having concluded…