Bonner v D'Arcy

[2021] NSWLEC 1329

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bonner v D’Arcy [2021] NSWLEC 1329

Hearing dates:

12 April 2021

Date of orders:

8 June 2021

Decision date:

08 June 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibits A, F and 4.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees are planted to form a hedge – obstruction of views – whether the obstruction is severe – application dismissed

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, s 14A, 14B, 14D, 14E, 14F

Cases Cited:

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Texts Cited:

AS 4373–2007 ‘Pruning of amenity trees’

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)

Category:

Principal judgment

Parties:

Chelsea Bonner (Applicant)
John William D’Arcy (First Respondent)
Leslie Patricia D’Arcy (Second Respondent)

Representation:

Counsel
D Loether (Solicitor) (Applicant)
I Smith (Solicitor) (Respondents)

Solicitors
Bartier Perry Lawyers (Applicant)
Harris & Company Solicitors (Respondents)

File Number(s):

2020/323056

Publication restriction:

No

Judgment

Background to the application

1. At the rear of the Fairlight property belonging to John and Leslie D’Arcy (‘the respondents’) are three mature trees: two weeping figs (Ficus benjamina) and a box elder (Acer negundo). They provide shade and amenity behind the D’Arcys’ dwelling. Chelsea Bonner (‘the applicant’) lives upslope from the D’Arcys’ property, their common boundary being the rear boundary of each property. The back of Ms Bonner’s dwelling faces south toward North Harbour and Reef Bay. She claims the trees severely obstruct the view from her dwelling. Ms Bonner has applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for removal of the weeping figs, annual pruning of the box elder, restrictions on any replacement plantings, and her costs in these proceedings.

Framework for this decision

2. For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

The hearing

3. The hearing took place onsite, allowing me to observe the trees, Ms Bonner’s views, the potential for overlooking between the properties, and other features of these properties. As we observed these features, evidence was provided by the experts present: planner, Alison Davidson and arborist, Louise Bennett for the applicant; and planner, Joe Vescio and arborist, Kyle Hill…