Campbell v Voller - [2010] NSWLEC 1351

Land and Environment Court

of New South Wales

CITATION: Campbell v Voller [2010] NSWLEC 1351

PARTIES:
APPLICANTS
B & E Campbell
RESPONDENTS
M & P Voller

FILE NUMBER(S): 20746 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Hedge; obstruction of sunlight and views; some views not from a dwelling; applicant dismissed on all counts

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 2/12/2010

DATE OF JUDGMENT:
2 December 2010

EX TEMPORE JUDGMENT DATE: 2 December 2010

LEGAL REPRESENTATIVES:
APPLICANTS
B & E Campbell [litigants in person]
RESPONDENTS
M & P Voller [litigants in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

2 December 2010

20746 of 2010 Campbell v Voller

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

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 owners of a property in Allambie Heights against the owners of 2 hedges growing on an adjoining property.

2 The applicants are seeking the removal of the 8 trees that comprise the 2 hedges. At the on-site hearing the applicants stated they would be content if the hedges could be maintained at a nominated height.

3 Hedge 1 is a row of 6 Cupressus macrocarpa (Cypress) growing on the south-eastern boundary of the respondents’ property beside their swimming pool. Hedge 2 comprises 2 xCupressocyparis leylandii (Leyland Cypress) growing on the north-eastern corner of the respondents’ property adjacent to the upper portion of the applicants’ driveway.

4 Both hedges satisfy s 14A of the Act in that they are groups of 2 or more trees planted so as to form a hedge, rise to a height of at least 2.5m, and are growing on appropriately zoned land.

5 The applicants contend that hedge 1 severely obstructs sunlight to 3 windows of their dwelling and severely obstructs views from their dwelling.

6 The respondents value this hedge for the privacy it provides for their pool and outdoor entertainment area. They do not want to remove the hedge but said that they are prepared to keep it at a reasonable height. They stated that they have pruned the hedge twice.

7 With respect to hedge 2, the applicants contend that the trees block their view of the footpath when they exit their driveway. As this is not a view from a dwelling, the Court has no jurisdiction to make any orders with respect to this hedge as it does not meet the jurisdictional test in s 14E(2)(a)(ii), that is the view must be from a dwelling. Therefore this element of the application is dismissed.

8 The hearing commenced with a site inspection and each of the windows and views, said to be obstructed, was considered.

9 Window 1 (W1) and window 2 (W2) are full-length windows on thesouthern wall of the living room. These windows generally face south across…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Campbell v Voller

Details

AGLC: Campbell v Voller [2010] NSWLEC 1351
Case: [2010] NSWLEC 1351
Decision Date: 2 December 2010

CaseChat Overview and Summary

The applicants, B & E Campbell, sought an order for the removal of two hedges on the property of the respondents, M & P Voller, who own the adjoining property in Allambie Heights. The applicants claimed that the hedges obstructed sunlight and views from their dwelling. The Land and Environment Court of New South Wales was required to determine whether the hedges constituted a severe obstruction of sunlight and views as defined in the Trees (Disputes Between Neighbours) Act 2006. The court examined the evidence presented, including the height of the hedges, the views obstructed, and the nature of the obstructions.

The court found that the hedges did not severely obstruct sunlight to the applicants’ windows. The windows faced south and were subject to physical obstructions from stairs, the deck, and the orientation of the dwelling. Therefore, the court dismissed the applicants’ claims regarding the obstruction of sunlight. Concerning the obstruction of views, the court determined that the hedges obstructed less than 30 degrees of the applicants’ potential 180-degree view, which was approximately 17%. The views were of trees at a greater distance than the trees to the south and southeast, and the obstructions did not meet the threshold for a severe obstruction. Additionally, the court considered whether the applicants' interest in removing the hedges outweighed the respondents' interest in maintaining privacy, which they valued for their pool and outdoor entertainment area. The court concluded that the applicants' interests did not outweigh the consequences of removing the hedges and dismissed the application.

The court's decision resulted in the dismissal of the applicants' claims regarding the obstruction of sunlight and views. The court found that the hedges did not meet the statutory criteria for a severe obstruction and that the applicants' interests did not outweigh the respondents' interest in maintaining privacy. As a result, no orders were made, and the application was dismissed in its entirety.

Orders