Drew v Tansey

[2019] NSWLEC 1651

Land and Environment Court

New South Wales

Medium Neutral Citation:	Drew v Tansey [2019] NSWLEC 1651
Hearing dates:	28 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – hedges –sunlight obstructed
Legislation Cited:	Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Clancy v Bell [2011] NSWLEC 1017 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Australian Pruning Standard (AS4373:2007)
Category:	Principal judgment
Parties:	Kiaran Drew (First Applicant) Ethne Drew (Second Applicant) Brendan Tansey (Respondent)
Representation:	Counsel: K Drew (Litigant in person) (First Applicant) E Drew (Litigant in person) (Second Applicant) K Osborne (Solicitor) (Respondent)   Solicitor: Meredith Hatton and Associate (Respondents)
File Number(s):	2019/290045
Publication restriction:	No

Judgment

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

1. COMMISSIONER: Moss Vale, in the Southern Highlands, is characterised by large residential properties, and, along with nearby towns, is renowned for beautiful gardens, boasting mature evergreen and deciduous trees.

2. As is common in many highland regions, Moss Vale is prone to strong winds. To mitigate the impact, on both urban and rural properties, many landowners grow rows of large trees as windbreaks.

3. The applicants, Mr and Mrs Drew, have occupied their dwelling since about 2001, while the respondent, Mr Tansey, moved here in 2014. They share a long side boundary, which runs roughly north-northeast at the front to south-southwest at the rear.

4. A row of nine mature Pinus radiata (Radiata Pine) (the trees), about 25 metres in height, is located in the respondents property, a few metres from, and roughly parallel to this boundary, bordering the applicants’. These trees are part of a longer row of conifers in the Tansey’s property.

5. Mr and Mrs Drew lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), in order to remedy damage that the trees have caused, are causing, and are likely to cause in the near future. They further claim that the trees represent a serious risk of injury to their family. They have also taken action under s 14 B of Part 2A of the Act, on the basis that the trees were planted as a hedge, and that they are causing a severe obstruction of sunlight to windows.

The applicants’ case

6. Under Part 2, Mr and Mrs Drew propose the following orders:

“a. Radiata Pine Trees on the eastern boundary to be cut to a height of no higher than five metres. This is to prevent injury, and damage to our property, as the trees are approximately 30-40 metres high, and already drop small branches onto our…