Brown v Xie

[2013] NSWLEC 1039

Land and Environment Court

New South Wales

Medium Neutral Citation:	Brown v Xie & anor [2013] NSWLEC 1039
Hearing dates:	28 February 2013
Decision date:	07 March 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views and sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Clancy v Bell [2011] NSWLEC 1017 Drewett v Best [2010] NSWLEC 1305 Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 McCallum v Riodan & anor [2011] NSWLEC 1009 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Jenny and Geoffrey Brown (Applicants) Chong Xie and Chen Xiue (Respondents)
Representation:	Applicants: Mrs J & Mr G Brown (Litigants in person) Respondents: Ms W Xie (Agent)
File Number(s):	21172 of 2012

Judgment

1. COMMISSIONER: The applicants in these proceedings purchased their Pymble property in October 2008. In September 2009, the respondents purchased a property at the rear of the applicants' property.

1. The real estate brochure produced for the sale of the respondents' property includes a photograph of the backyard, at the rear of which is a group of mature and substantial conifers (this photograph is reproduced and included in this judgment as Attachment A).

1. The applicants are seeking orders for the pruning of these conifers to a height of 4m and their subsequent maintenance at that height on the basis that these trees severely obstruct views from their dwelling. The application is made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

1. The respondents do not wish to prune the trees as they value the trees for their appearance and amenity. They also contend that the trees were fully mature and considerably tall when the applicants purchased their property and that there is no tangible loss of enjoyment of a view of any note or significance as a consequence of the trees.

1. In applications under Part 2A, there are a number of jurisdictional tests that must be satisfied before the Court can consider what, if any, orders should be made for any interference with any of the trees the subject of the application.

Are the trees planted so as to form a hedge?

1. The first of these jurisdictional tests is satisfaction of s 14A(1). This states:

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge; and

(b) rise to a height of at least 2.5 metres (above existing ground level).

1. The application identifies six trees, however with the benefit of the site inspection, the trees the subject of the application are a row of five mature conifers comprising three species: from east to west the trees are three Cupressus sempervirens 'Stricta' (Italian Cypress), a golden cultivar of Cupressus macrocarpa (Golden Cypress) with multiple stems,…