King v Silcocks

[2012] NSWLEC 1297

Land and Environment Court

New South Wales

Medium Neutral Citation:

King v Silcocks & anor [2012] NSWLEC 1297

Hearing dates:

25 October 2012

Decision date:

25 October 2012

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The application is dismissed.

Catchwords:

TREES [NEIGHBOURS] Hedge; obstruction of sunlight; obstruction not severe; application dismissed.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Hinde v Anderson and anor [2009] NSWLEC 1148
Johnson v Angus [2012] NSWLEC 192
Tooth v McCombie [2011] NSWLEC 1004

Category:

Principal judgment

Parties:

Mr Brendan King (Applicant)

Mr Mark Silcocks (First respondent)
Ms Dale McCarthy (Second respondent)

Representation:

Mr Brendan King (Applicant in person)

Mr Mark Silcocks (Respondent in person)

File Number(s):

20811 of 2012

Judgment

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

1. COMMISSIONER: Mr King has owned a residential property in Double Bay since 1996. He says that trees have grown up on a neighbouring property and now obstruct sunlight to windows of his dwelling. He has applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for removal of one tree and pruning of six others to a height of 2.3 metres.

1. Mr Silcocks and Ms McCarthy own the land on which the trees grow. They had six of the trees pruned about one month ago. They wish to retain the trees and avoid further pruning as they value visual screening between properties provided by the trees.

1. For orders to be made under Part 2A of the Act, the Court must first be satisfied, at s 14A(1), that the trees are planted so as to form a hedge; and that they rise to a height of at least 2.5 metres. Secondly, the Court must be satisfied, according to s 14E(2)(a)(i), that the trees are severely obstructing sunlight to a window of the applicant's dwelling (this application does not concern views). Finally, according to s 14E(2)(b), the Court must also be satisfied that the severity and nature of the obstruction is such that it outweighs any reasons not to interfere with the trees.

1. The hearing took place onsite, allowing observations of the trees and of the potential for them to obstruct sunlight to windows highlighted in the application.

Do the trees form a hedge?

1. The trees are:

• T1, a Washington Palm a few metres from the rear boundary;
• T2-T7, which form a line close to and parallel with the rear boundary and comprise, according to the application, three Viburnums and three Lilly Pillies.

1. According to the applicant, T1 is older than the other six trees. It is around 15 metres tall with a small crown atop a single stem, as is the nature of most palms. Bringing my own expertise to the matter, I agree that this tree is older than the others. It is also physically separate from the others.

1. In Johnson v Angus [2012] NSWLEC 192, Preston CJ determined that, for the trees to satisfy…