Hamman v Ip

[2015] NSWLEC 1416

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hamman v Ip [2015] NSWLEC 1416
Hearing dates:	16 October 2015
Date of orders:	16 October 2015
Decision date:	16 October 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; severe obstruction of sunlight; insufficient evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Local Government Act 1993
Cases Cited:	Deville & anor v Frith & anor [2014] NSWLEC 1002 Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Zelda Hamman (Applicant) Danuta Ip (Respondent)
Representation:	Applicant: Harry Hamman (Agent) Respondent: Danuta Ip (Litigant in person)
File Number(s):	20659 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to four metres and subsequent annual pruning of two rows of trees growing on the respondent’s property.

2. The orders are sought on the contention that the trees severely obstruct sunlight to 11 nominated windows of the applicant’s St Ives dwelling; specifically (as stated in the Application Claim Form) – “about 70% of sunlight is lost from sunrise to 11am every day of the year”. The response in the claim form indicates that at the time the application was made (late July) there was no direct sunlight to any of the nominated windows.

3. The respondent disputes the claim and produced photographs taken of the rear of the applicant’s dwelling at various times of the day and year which, she says, demonstrate that the trees don’t severely obstruct sunlight to the nominated windows during the period claimed by the applicant.

4. Section 14B Part 2A enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the applicant’s land, or severe obstruction of a view from a dwelling situated on the applicant’s land, if the obstruction occurs as a consequence of trees to which this Part applies. This application is confined to obstruction of sunlight.

5. Before the Court’s powers to consider if the orders the applicant seeks should be made, there are a number of jurisdictional tests that must be sequentially satisfied.

6. The first is whether the trees are trees to which Part 2A applies. Section 14A(1) states:

(1)   This Part applies only to groups of 2 or more trees that:

(a)   are planted (whether in the ground or otherwise)so as to form a hedge, and

(b)   rise to a height of at least 2.5m (above existing ground level).

7. The trees are a row of x Cupressocyparis leylandii ‘Leighton Green’ (Leyland Cypress - referred to in the application as ‘Leylandii’) and a row of Cupressus torulosa (Bhutan Cypress – indicated as ‘Pencil Pines’). The trees are growing along part of the southern boundary of the respondent’s property adjacent to the dividing fence that separates the parties’ properties. All are in excess of 2.5m tall.

8. According to the respondent’s…