Doyle v Tu

[2023] NSWLEC 1535

Land and Environment Court

New South Wales

Medium Neutral Citation:

Doyle v Tu [2023] NSWLEC 1535

Hearing dates:

15 June 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – balancing sunlight and privacy – are hedge trees causing damage

Legislation Cited:

Dividing Fences Act, 1991, s 13A

Trees (Disputes between Neighbours) Act 2006, Pts 2, 2A, ss 7, 8, 9, 10, 12, 14A, 14B, 14C, 14D, 14E

Cases Cited:

Bhuta v Cefai [2023] NSWLEC 1330

Freeman v Dillon [2012] NSWLEC 1057

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Liang & anor v Marsh & anor [2011] NSWLEC 1026

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Wisdom v Payn [2011] NSWLEC 1012

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Jennifer Anne Doyle (Applicant)
Viola Tu (First Respondent)
Davy Nai Hung Fok (Second Respondent)

Representation:

J Doyle (Self-represented) (Applicant)
V Tu (Self-represented) (First Respondent)
D Fok (Self-represented) (Second Respondent)

File Number(s):

2023/87207

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Ms Jennifer Doyle, the applicant, shares a common boundary with the respondents, Ms Viola Tu and Mr Davy Nai Hung Fok, between their properties in Dural. The level of the applicant’s land is about 700mm lower than the respondents’ land and the respective properties are accessed from different streets. The common boundary runs from east to west and the applicant’s north side boundary is the respondents’ rear boundary.

2. Ms Doyle occupied her property 35 years ago and she said the respondents planted a row of nine Cupressocyparis leylandii (Leyland Cypress) (the trees) about 23 years ago at the rear of their back yard. The applicant noted that the trees had initially grown to about 5 metres (m) tall, but were pruned to a height around 2.5 m about 10 years ago and have been maintained around that height up to the present.

3. The applicant requested that the respondents remove the trees and offered, with her son, to remove them from the respondents’ land. The respondents have a low second hedge of Box trees on their side of the Cypress trees and the applicant preferred that only the Box hedge be retained, and a low fence topped with lattice be installed along the common boundary to allow increased winter sunlight penetration to the applicant’s yard.

4. The respondents resisted removal or height reduction of the Leyland Cypress trees as they value the privacy the trees provide in the back of their dwelling and in their rear yard, and the trees’ aesthetic contribution to their garden. In response to Ms Tu’s claim that she could view the applicant in her kitchen in the absence of the trees, Ms Doyle proposed installing a blind, but the respondents were not satisfied with this solution. The parties conducted mediation through a Community Justice Centre (CJC)…