Davis v Millar

[2016] NSWLEC 1256

Land and Environment Court

New South Wales

Medium Neutral Citation:	Davis & anor v Millar [2016] NSWLEC 1256
Hearing dates:	17 June 2016
Date of orders:	22 June 2016
Decision date:	22 June 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : hedge; obstruction of sunlight; height of trees when property purchased; no proof of available solar access at time of purchase
Legislation Cited:	Trees (Disputes Between Neighbours) 2006 Blue Mountains Local Environmental Plan 2005
Cases Cited:	McDougall v Philip [2011] NSWLEC 1280
Category:	Principal judgment
Parties:	Rodney Davis and Barbara Davis (Applicants) Pauline Millar (Respondent)
Representation:	Applicants: R & B Davis (Litigants in person) Respondent: P Millar (Litigant in person)
File Number(s):	154022 of 2016

Judgment

1. COMMISSIONER: In April 2011, the applicants purchased their Hazelbrook property. At the time, there was a row of Leyland Cypress trees growing along the southern boundary of the adjoining property to the north.

2. The respondent planted the trees in January 2003 in order to create a privacy screen between the applicants’ property and other nearby properties which overlooked her dwelling. The applicants state that the trees were approximately 5-6m tall when they purchased their property and have now reached an estimated height of 10-12m.

3. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of the trees to a height of 2.5m above the concrete terrace on their property and subsequent maintenance at a height of 3m. The orders are sought on the basis that the trees severely obstruct sunlight to windows of their dwelling. The applicants’ terrace is approximately 400-500mm above the natural ground level of the respondent’s property.

4. The respondent opposes the pruning or removal of the trees.

5. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied in order to engage the Courts’ powers under s 14D to make orders. If the jurisdictional tests are satisfied, the Court is not obliged to make the orders sought by the parties.

6. There is no dispute that the 12 trees are planted so as to form a hedge and are more than 2.5m tall; this satisfies s 14A(1) of the Act. The trees are wholly on the respondent’s property.

7. As stated in their application claim form, the applicants first approached the respondent in regards to removing or pruning the hedge in June 2014. An offer of financial assistance was made. The applicants state that the respondent needed some time to think about it. The second approach was made two weeks later and the respondent made it clear that she did not want to remove or prune the trees as she valued them for privacy. As is her right, the respondent opted not to participate in an offer made by the Community Justice Centre on behalf of the applicants to mediate the dispute. It appears that there were no further discussions until the applicants filed the Class 2…