Brown v Davey

[2021] NSWLEC 1639

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brown v Davey [2021] NSWLEC 1639

Hearing dates:

22 July 2021

Date of orders:

22 July 2021

Decision date:

22 July 2021

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of sunlight severe – balance between sunlight and privacy – application dismissed

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

ss 14A(1), ss 14B, ss 14E(1)(a), ss 14E(2)(a)(i)

Wyong Local Environment Plan 2013

Cases Cited:

Clancy v Bell [2011] NSWLEC 1017

De Zylva &anor v Staas & anor [2012] NSWLEC 1242

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Hinde v Anderson & anor [2009] NSWLEC 1148

Tonoli v Rappo [2010] NSWLEC 1320

Tooth v McCombie [2011] NSWLEC 1004

Voeten & anor v Adams [2011] NSWLEC 1106

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (June 2021)

Category:

Principal judgment

Parties:

Geoffrey Brown (Applicant)
Grant Davey (Respondent)

Representation:

G Brown (Litigant in person) (Applicant)
G Davey (Litigant in person) (Respondent)

File Number(s):

2021/106258

Publication restriction:

No

Judgment

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

Background

1. Mr Brown, the applicant, and Mr Davey, the respondent, share a side boundary between their properties in Fountaindale, in the Wyong LGA. Mr Brown occupied his property in 1999, and built his dwelling in 2000. Mr Davey occupied in 2019.

2. In about 2010, a row of 43 x Cupressocyparis leylandii (Leyland Cypress) were planted in the respondent’s property, parallel with, and adjacent to, the common boundary. They run eastward for about 35 metres from the respondent’s south-western corner. In 2015, an additional 30 Leyland Cypress trees were planted, extending the hedge along the entire boundary, which measures almost 74 metres.

3. Over the intervening years the trees have grown larger and taller, until the applicant now says that some of the north facing windows of his dwelling receive significantly less sunlight, particularly in winter. Mr Brown has submitted an application with the Land and Environment Court (“LEC”), pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), seeking orders for the hedge to be pruned, such that it is less than five metres high, as at the beginning of each calendar year.

4. The application included a copy of a letter, dated 3 March 2021, from a Community Justice Centre (“CJC”) Director, advising that the respondent had declined the applicant’s attempt to engage in mediation.

Framework

5. The Court cannot make orders under Part 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views from, or, of sunlight to a window of, the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.

Hearing:…