Flynn v Aththas

[2017] NSWLEC 1685

Land and Environment Court

New South Wales

Medium Neutral Citation:	Flynn & Anor v Aththas [2017] NSWLEC 1685
Hearing dates:	29 November 2017
Date of orders:	29 November 2017
Decision date:	29 November 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : Hedge; obstruction of sunlight; trees pruned; sufficiency of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Drewett v Best [2010] NSWLEC 1305 Freeman v Dillon [2012] NSWLEC 1057 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Michael & Carolyn Flynn (Applicants) Michelle Aththas (Respondent)
Representation:	Applicants: Mr D Spencer (Solicitor) Respondent: Mr R Glover (Barrister) Solicitors: Applicant: Miller Noyce Respondent: Direct appointment
File Number(s):	2017/249947
Publication restriction:	No

JUDGMENT

1. COMMISSIONER:   The applicants own a battle-axe block in Hornsby. Growing along the eastern side boundary at the rear of the respondent’s property is a row of about 34 Viburnum odoratissimum (Viburnum) planted in about 2004 as a privacy screen.

2. The applicants contend that the row of Viburnum severely obstructs sunlight to three windows of their dwelling, and as a consequence, has detrimental impacts on the applicants’ health and well-being. As such, the applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the hedge.

3. Since receiving the Class 2 application, the respondent has had the trees pruned, most recently in early to mid-November; she does not wish to remove the trees as that would compromise the privacy of her backyard and rear of her dwelling.

4. During the course of the on-site hearing, the applicants’ solicitor Mr Spencer stated that his clients would agree to a further reduction of the height to at or below fence level and then the maintenance of regrowth to about 500mm above the fence (estimated to be approximately 2.3m above ground level). In order to maintain her privacy, the respondent does not wish to further reduce the trees from their current height. Counsel for the respondent, Mr Glover, submits that the application should be dismissed on jurisdictional grounds.

5. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged.

6. The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge; and if so, do they reach a height of at least 2.5m above ground level?

7. The parties agree that the trees are planted so as to form a hedge. With the aid of height sticks, the trees were found to be in excess of 2.5m. Those measured were between 2.7m and 3m above ground level when measured from the respondent’s property. Therefore, the Viburnum trees are trees to which Part 2A applies.

8. Pursuant to s 14E(1)(a) I am satisfied that the applicants have attempted to reach an agreement with…