Deville & anor v Frith & anor

[2014] NSWLEC 1002

Land and Environment Court

New South Wales

Medium Neutral Citation:	Devile & anor v Frith & anor [2014] NSWLEC 1002
Hearing dates:	9 January 2014
Decision date:	14 January 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see paragraph [45]
Catchwords:	TREES [NEIGHBOURS] Hedge, obstruction of sunlight
Legislation Cited:	Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Devile v Frith [2011] NSWLEC 1250 Hinde v Anderson & anor [2009] NSWLEC 1148 McDougall v Philip [2011] NSWLEC 1280
Category:	Principal judgment
Parties:	S & P Devile (Applicants) D & R Frith (Respondents)
Representation:	Applicants: S & P Devile (Litigants in person) Respondents: D & R Frith (Litigants in person)
File Number(s):	20748 of 2013

Judgment

1. COMMISSIONER: The applicants in this matter reside on a battle-axe block to the south of the respondents' property in Winmalee. They purchased their land in 2004 and built their house in 2005.

1. At the time of purchase, an established row of Leyland Cypress trees grew along the southern boundary of the respondents' property. A photograph taken from the applicants' property in September 2004 shows the trees prior to the construction of the applicants' dwelling. The trees are planted in two sections - to the east and west of the respondents' dwelling. The trees are estimated to have been between 8-10m high in 2004.

1. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning and maintenance of the Leyland Cypress trees to 9m on the basis that the trees are severely obstructing sunlight to a number of windows of their dwelling.

1. They are also seeking orders for the pruning and maintenance of a row of bamboo planted between the sections of Cypresses to 6m for the same reason.

1. This is the second application the applicants have made under Part 2A of the Act. In Devile v Frith [2011] NSWLEC 1250, Hewett AC dismissed the application on the basis that the undesirability of interfering with the trees outweighed the applicants' interests in having the obstruction to sunlight removed.

1. The respondents are of the opinion that the current application should be dismissed as there is no new evidence to warrant the orders the applicants seek. In their view, the respondents contend the shading of the applicants' dwelling is a consequence of its design and siting.

1. In applications under Part 2A of the Act, there are a number of jurisdictional tests that must be sequentially satisfied.

1. It is common ground that the trees in question are planted so as to form a hedge and rise to a height of more that 2.5m, thus satisfying s 14A(1).

1. In my view, there are three hedges, Hedge 1 being the eastern row of Leylands (trees 1-18), Hedge 2 being the bamboo, and Hedge 3 (trees 19-25) comprising the western row of Leyland Cypress.

1. The next relevant jurisdictional test is satisfaction of s 14E(2) which states:

(2) The Court must not make…