Bishop v Safro

[2011] NSWLEC 1269

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bishop v Safro [2011] NSWLEC 1269
Hearing dates:	5 September 2011
Decision date:	14 September 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application in regards to loss of view upheld in part; pruning of one section of hedge ordered; application in regards to sunlight dismissed.
Catchwords:	TREES [NEIGHBOURS] hedge; obstruction of sunlight and views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148Drewett v Best [2010] NSWLEC 1305 Tenacity Consulting v Warringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Applicant: Mrs N Bishop Respondent: Ms E Safro
Representation:	Applicant: Mr P Holland (Solicitor) Respondent: Mr Reuben (Barrister) Applicant: McCullough Robertson Respondent: Comino Prassas
File Number(s):	20530 of 2011

Judgment

1. COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Watson's Bay against the owner of trees growing on an adjoining property.

1. The trees are a row of approximately 23 xCupressocyparis leylandii 'Leighton Green' growing along the southern side boundary of the respondent's property. The applicant's ground floor unit is to the south of the respondent's property.

1. The applicant seeks either the removal of the trees or their maintenance at a maximum height of 900mm above the masonry boundary wall between the properties. In the event of any non-compliance of any order that may be so made, the applicant seeks right of access to the respondent's property for the purpose of maintaining the trees at that height and that the works be paid for by the respondent.

1. The basis of the application is the applicant's contention that the trees severely obstruct sunlight to windows of her dwelling and severely obstruct views from her dwelling.

Jurisdiction

1. In considering applications made under Part 2A of the Act, there are a number of jurisdictional tests, the first being whether the trees subject to the application satisfy s 14A of the Act. Relevantly, there must be two or more trees planted (in the ground or otherwise) so as to form a hedge, which rise to a height of at least 2.5 m (above existing ground level), and are on appropriately zoned land.

1. In material filed for the respondent, the contention is that the application fails to satisfy the jurisdictional test in s 14A(1)(b) in that the trees are maintained to a height of less than 2.5m.

1. At the hearing, the height of the lowest section of hedge was measured with a height stick and found to be just in excess of 2.5m. The lowest portion is a section at the southern end of the rear (western) terrace between the wall of the dwelling to the east and a rail on the edge of a wall to the west. The portion of the hedge to the west is planted in a raised planted box some distance below the mid portion; those trees were in excess of…