Baker v Swan

[2023] NSWLEC 1359

Land and Environment Court

New South Wales

Medium Neutral Citation:

Baker v Swan [2023] NSWLEC 1359

Hearing dates:

20 February 2023

Date of orders:

20 February 2023

Decision date:

20 February 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing sunlight to a window of a dwelling

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2, s 10, Pt 2A, ss 14A, 14B, 14C,14E, 14F

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Hendry v Olsson [2010] NSWLEC 1302

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Category:

Principal judgment

Parties:

Raymond Baker (Applicant)
Wendy Swan (Respondent)

Representation:

Counsel:
A Slattery (Solicitor) (Applicant)
M Skinner (Solicitor) (Respondent)

Solicitors:
Arnold Lawyers (Applicant)
O’Hearn Lawyers (Respondent)

File Number(s):

2022/338404

Publication restriction:

Nil

JUDGMENT

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

Background

1. COMMISSIONER: Mr Raymond Baker, the applicant, shares a side boundary with the respondent, Ms Wendy Swan, between their properties in Rutherford. The common boundary (boundary) extends from south-west at the front of the applicant’s land to north-east at the rear. The respondent’s driveway faces the south-west, but her property is a corner block, and the front of the respondent’s dwelling faces north-west.

2. Mr and Mrs Baker occupied their property in 2016, while Ms Swan and her husband occupied her property in 2017, at which time the trees had been growing for many years and were already mature. The respondent’s trees comprise two Fraxinus sp. (Ash), one Callistemon viminalis (Weeping Bottlebrush), and a row of Syzygium sp. (Lilly Pilly).

3. Ms Swan provided an affidavit (Exhibit 1), dated 27 January 2023, in which she noted that Mr Baker had complained to her husband about the height of the Lilly Pilly’s and the Weeping Bottlebrush on a few past occasions, and that she therefore had the height of the Lilly Pilly trees reduced about two years ago. Nonetheless, this pruning failed to satisfy Mr Baker as he preferred that the trees be pruned to the level of the boundary fence, or lower.

4. Consequently, Mr Baker submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking the following (summarised) orders:

1. Prune the trees down to fence height or lower.

Framework

5. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees form a hedge which is causing a severe obstruction of sunlight to at least one window of the applicant’s dwelling, or of views from the applicant’s dwelling. If so satisfied, the Court must consider a range of matters such as the benefits of the trees and the privacy they provide.

Onsite hearing: observations and submissions

6. The onsite…