Ditton v Barker

[2015] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ditton v Barker & anor [2015] NSWLEC 1274
Hearing dates:	22 July 2015
Date of orders:	22 July 2015
Decision date:	22 July 2015
Jurisdiction:	Class 2
Before:	Fakes c
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Ms S Ditton (Applicant) Mr R Barker (First Respondent) Ms J Martin (Second Respondent)
Representation:	Applicant: Ms Ditton (Litigant in person) Respondents: Mr Barker and Ms Martin (Litigants in person)
File Number(s):	20336 of 2015

Judgment

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

1. COMMISSIONER: The applicant in this matter occupies a property in Fisherman’s Paradise in the Shoalhaven local government area. She has made an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of two rows of Leyland Cypress trees growing along the front and rear boundaries of the adjoining property.

2. The applicant maintains that the trees in question severely obstruct sunlight to windows on the front and rear facades of her house, particularly between the months of May and August. While some mention is made in the application claim form of sunlight to the front lawn and backyard, Part 2A of the Act only applies to the obstruction of sunlight to windows of a dwelling.

3. The respondents value the trees for the shade they provide and as windbreaks.

4. In applications under Part 2A there are a number of jurisdictional tests that must be satisfied sequentially before the Court’s powers to make orders under s 14D are engaged.

5. The first of these tests is whether the trees in question are trees to which the Part applies. Section 14A(1) of the Act requires there to be two or more trees planted so as to form a hedge, and which rise to a height of at least 2.5m.

6. I am satisfied that the five trees along the respondents’ eastern/ front boundary and the five along the rear or western boundary have been planted so as to form a hedge. This opinion is based on the linear arrangement, spacing and species. According to information obtained by the respondents from a former owner of their property, the trees were planted in 1984 as a windbreak and are parts of longer rows which extend to the north. Subdivision of the original lot has resulted in parts of the rows being in separate ownership. The trees are estimated to be approximately 12-14m tall.

7. The next relevant test is found in s 14E(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied:

(a)   the trees concerned:

(i)   are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii)   are severely obstructing a view from a dwelling situated on the applicant’s land, and

(b)   the severity and nature…