Butler v Taylor

[2016] NSWLEC 1427

Land and Environment Court

New South Wales

Medium Neutral Citation:	Butler v Taylor & anor [2016] NSWLEC 1427
Hearing dates:	20 September 2016
Date of orders:	20 September 2016
Decision date:	20 September 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	[TREES [NEIGHBOURS] Hedge; obstruction of sunlight; discretion
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Richard Butler (Applicant) David and Joanne Taylor (Respondents)
Representation:	Applicant: Mr R Butler (Litigant in person) Respondents: Ms G Taylor (Agent)
File Number(s):	151839 of 2016

Judgment

1. COMMISSIONER:   The applicant and his wife have owned a villa in a complex in Warners Bay since 2001. The respondents’ property is to the east. The respondents have planted a row of plants along part of the shared common boundary, five of which the applicant contends are severely obstructing sunlight to several windows on the eastern side of his dwelling.

2. The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the five nominated plants.

3. In their written response, the respondents do not wish to remove the plants as they value them for the privacy they afford their property and for the habitat they provide local wildlife.

4. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged.

5. The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge?

6. The five trees in question, labelled on the diagram in the application claim form from north to south are:

• T1 – Monstera,

• T2 – Bamboo (clumping)

• T3 – Giant Bird of Paradise (Strelitzia nicolai)

• T4 – Purple Duranta (Duranta erecta)

• T5 – Giant Black bamboo (clumping)

7. The photographs included in the application claim form show a dense mass of vegetation with the foliage of various plants intermingling and overhanging the fence. At the time of the on-site hearing, it was clear that the respondents had cleared some of the growth back from the fence and thinned and pruned a number of plants. The spacing and arrangement of the trees could be seen from the applicant’s property.

8. The applicant’s uncontested statement is that the plants, the subject of the application, were planted sometime in 2006/2007. The respondents’ daughter was unable to verify this.

9. Although the plants are of a mixture of species, the spacing is a fairly regular 1.5-2m and it is possible they were planted during the same event. While I am not fully satisfied that the row of plants would be perceived by anyone viewing them on the day of the hearing as a ‘hedge’ as discussed in Wisdom v Payn [2011] NSWLEC 1012 at paragraph [45], in putting the applicant’s case at its highest, I will consider…