Bagley v Guthrie

[2012] NSWLEC 1252

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bagley v Guthrie [2012] NSWLEC 1252
Hearing dates:	29 August 2012
Decision date:	07 September 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views and sunlight; insufficient evidence; discretionary matters
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Johnson v Angus [2012] NSWLEC 192 Drewett v Best [2010] NSWLEC 1305 Ball v Bahramali [2010] NSWLEC 1334 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Mr J Bagley (Applicant) Ms S Guthrie (Respondent)
Representation:	Applicant: Mr J Bagley (Litigant in person) Respondent: Mr J Johnson (Barrister) Respondent: Fox & Staniland Lawyers
File Number(s):	20572 of 2012

Judgment

1. COMMISSIONER:This application concerns a row of Cupressocyparis leylandii (Leyland Cypress) growing along the eastern boundary of a property in Turramurra.

1. The applicant has made an application under s 14B Part 2A of the Trees (Disputes Between Neighbours)Act 2006 (the Act) seeking orders to remedy, restrain or prevent a severe obstruction of views from his dwelling and sunlight to windows of his dwelling. In his application, the applicant seeks orders for the pruning of the trees to a maximum height of 4.5 metres and their subsequent maintenance to that height every two to three years. During the course of the hearing, the applicant considered that a height of 5.3m for the younger elements of the hedge would be acceptable and a maximum height of 8m for the older trees.

1. Amongst other things, the respondent values the trees for the privacy they afford and the green backdrop they create. While she has had some trees pruned, she is unwilling to reduce the height of the trees to the heights sought by the applicant.

1. The respondent's position is that the majority of the trees do not satisfy the jurisdictional tests in s 14E(2)(a). However, if the Court finds that this section is satisfied for some trees, the respondent submits that a consideration of s 14E(2)(b) would result in no orders being made for any further interference with the trees.

1. The hearing was held on site. Both parties had obtained arboricultural reports however, only the respondent's arborist, Mr Guy Paroissien, was present at the hearing.

1. In applications made under Part 2A, there are a number of jurisdictional tests to be satisfied before the Court's jurisdiction to make orders is engaged.

Relevant background

1. The applicant purchased her property in 1996; some of the trees were present at that time.

1. In August 1999, Ku-ring-gai Council approved a SEPP 5 development containing 6 detached dwellings and 12 apartments; the applicant owns one of the apartments. According to the Statement of Environmental Effects (exhibit 3), the site was formerly occupied by a dwelling with a substantial amount of open space, some of which was used for keeping a horse.

1. The applicant and his wife moved into their top floor apartment in 2002. The apartment is aligned from north to south; the…