Kenney-Herbert v Humble

[2013] NSWLEC 1219

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kenney-Herbert v Humble & anor [2013] NSWLEC 1219
Hearing dates:	8 November 2013
Decision date:	15 November 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Environmental Planning and Assessment Act, 1979
Cases Cited:	Drewett v Best [2010] NSWLEC 1305 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Category:	Principal judgment
Parties:	Ms R Kenney-Herbert (Applicant) Ms C Humble (First Respondent) Mr M Ryan (Second Respondent)
Representation:	Applicant: Ms D Young (Agent) Respondents: Mr I Hemmings SC (Barrister)
File Number(s):	20632 of 2013

Judgment

1. COMMISSIONER: The applicant purchased her ground floor unit in Woollahra in 2003. She is concerned that a hedge planted on the adjoining property severely obstructs sunlight to the living areas of her dwelling, especially in winter.

1. The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of the hedge to a height no greater than 700mm above the top of the dividing fence. During the hearing, the applicant's agent Ms Young, considered that further reduction to fence height would be more appropriate.

1. Mr Hemmings, for the respondents, submits that the shading of the applicant's dwelling is a consequence of the respondents' dwelling and not the trees that form the hedge. To that end, he contends that the Court has no jurisdiction to make the orders sought by the applicant.

Assessment framework

1. Relevant to this matter, section 14B of the Act 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 land if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land.

1. The Court has accepted the word 'sunlight' to be 'direct sunlight' rather than just daylight (see Drewett v Best [2010] NSWLEC 1305 at [17]).

1. Before considering the nature of the obstruction, the first jurisdictional test to be considered is s 14A. This requires that there must be two or more trees planted so as to form a hedge, and if so, are they at least 2.5m tall. The trees must be on appropriately zoned land.

1. The Court's jurisdiction to make orders is found in s 14D. Relevantly, s 14D(1) states that the Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

1. Section 14E(1) requires that the Court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated.

1. The next relevant tests are…