Kelly v Davies

[2022] NSWLEC 1212

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kelly v Davies [2022] NSWLEC 1212

Hearing dates:

02 June 2022

Date of orders:

02 June 2022

Decision date:

02 June 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –- were the trees planted - do the trees form a hedge – are views severely obstructed – balancing of interests

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

s14A, 14B, 14E

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Johnson v Angus 190 LGERA 334; [2012] NSWLEC 192

Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152

Wisdom v Payn [2011] NSWLEC 1012

Category:

Principal judgment

Parties:

Mathew Kelly (Applicant)
Lloyd Davies (First Respondent)
Barbara Davies (Second Respondent)

Representation:

M Kelly (Self-represented) (Applicant)
J Sharp (Agent) (Respondent)

File Number(s):

2022/80700

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.

Background

1. Matthew Kelly, the applicant, has owned a property in Beacon Hill since 1992. He claims that since then, three trees in the adjacent neighbouring property to his north have grown and increasingly obstructed sunlight from the northern side of his dwelling.

2. The respondents, Lloyd and Barbara Davies, have owned their property for 47 years, since 1975. It is located within the Northern Beaches Local Government Area (LGA). A general Tree Preservation policy applies, and Northern Beaches Council are the Statutory Authority. Jonathan Sharp, the respondents’ son in law, has been appointed to act as the respondents’ Agent.

3. So as to re-gain sunlight to windows he claims are obstructed by neighbouring trees, Mr Kelly submitted an application with the Land and Environment Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”).

4. The proposed orders are:

1. Remove the trees marked T1, T2, T3 on the respondents’ property as marked in the attached documentation to prevent the severe obstruction of sunlight to the windows of the dwelling situated on the applicant’s land.

Onsite hearing

5. The hearing took place onsite, with both Mr Kelly and Mr Sharp present. A copy of the respondents’ Agency application form, stamped and accepted by the Court, was included in the file.

6. The trees were inspected initially. Three distinctly different trees (the trees) were distributed across the rear of the respondents’ property, in a largely irregular pattern, relative to most hedges. They were not in a straight line, the spacing between the trees was uneven, and one of the three is much older than the other two.

7. The Court moved to the applicant’s dwelling, to assess view obstruction from nominated locations, and to take submissions.

Jurisdictional requirements

8. In Pt 2A matters under the Trees Act, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings…