Clancy v Bell

[2011] NSWLEC 1017

Land and Environment Court

New South Wales

Medium Neutral Citation:	Clancy v Bell & anor [2011] NSWLEC 1017
Hearing dates:	7 February 2011
Decision date:	07 February 2011
Before:	Fakes C
Decision:	1. Application is dismissed.
Catchwords:	TREES [NEIGHBOURS]; hedge; obstruction of sunlight; shadow diagrams show no severe obstruction.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Mrs G Clancy (Applicant) Mr A Bell (Respondent) Mrs W Bell (Respondent)
Representation:	Solicitors: Mrs G Clancy [litigant in person] (Applicant) Mr D Leung [solicitor] Antunes Lawyers and Advocates (Respondents)
File Number(s):	10/20768

Judgment

1. This is an application pursuant to s14B Part 2 A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Cherrybrook against the owners of trees growing on an adjoining property.

1. The applicant is seeking the reduction of 11 trees to a height of 3.5m and for the trees to be maintained to control their height and width.

1. These orders are sought because the applicant contends that "all east rising sun is totally blocked" from her property. However, the applicant states that no windows are involved although 5 windows are nominated in the application form. Window 1 is on the south-eastern side of the applicant's property and the other 4 are on the southern elevation of the dwelling. All nominated windows face onto the front verandah of the applicant's property.

1. The applicant is also concerned that the trees are of excessive height and could cause damage to her property. With respect to this contention, the applicant did not make any application with respect to Part 2 of the Trees Act.

1. The trees are 11 xCupressocyparis leylandii 'Leighton Green' (Leyland Cypress) growing along a portion of the western boundary of the respondents' property. These trees adjoin another row of trees along the southern boundary fence and together they enclose the south-western corner of the respondents' property.

1. Tree 11 is the most northerly of the trees. The northern extremity of this tree is approximately 2m to the south of W1. Trees 9-11 are adjacent to the verandah and eastern side of the applicant's dwelling. The remainder of the trees adjoin the applicant's front garden. There is a distance of approximately 3m from the dividing fence to the applicant's dwelling.

1. In front of the verandah opposite windows W2 and W3 are several mature Camellias and a Viburnum that are almost up to the height of the eaves. Another mature Camellia is growing in front of the verandah between windows 4 and 5.

1. The respondents value the trees for the privacy they afford, particularly from the elevated western end of the street. Mr Leung, solicitor for the respondents also submits that the trees protect the house from the western sun and thus reduce the need for air conditioning and that the trees block the glare of headlights from traffic entering the street from the west.

Jurisdictional tests and the evidence

1. The trees subject to…