Knox v Love

Land and Environment Court

New South Wales

Medium Neutral Citation:

Knox v Love [2011] NSWLEC 1257

Hearing dates:

11 August 2011

Decision date:

11 August 2011

Jurisdiction:

Class 2

Before:

Dixon C
Galwey AC

Decision:

(1)     The respondents are to prune the hedge, which consists of eight Camellias and one Maple, to a height no greater than 3.0 m above ground level, measured from the base of each tree.

(2)     The orders in (1) are to be carried out within 60 days of the date of these orders.

(3)     The respondents are to maintain the hedge at a height no greater than 3.3 m above ground level, measured from the base of each tree.

Catchwords:

TREES [NEIGHBOURS]; hedge; obstruction of sunlight

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Category:

Principal judgment

Parties:

Mr A Knox (Applicant)
Ms J Knox (Applicant)

Mr J Love (Respondent)
Ms B Love (Respondent)

Representation:

A & J Knox (Applicants in person)

J & B Love (Respondents in person)

File Number(s):

20275 of 2011

Judgment

Introduction

1. The owners of a property in Pymble have applied to the Court seeking orders regarding trees on an adjoining property and associated issues.

1. This tree dispute application is in two parts. Firstly, pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), the applicants seek the removal of the English Oak that grows on the respondents' property on the basis that it has caused damage to their property. They also seek orders allowing them to reinstate the stormwater, sewer and concrete paving in their property, and for repairs to a damaged wall of their dwelling, at the respondents' cost. Other orders sought under this part of the application include removal of soil build-up against a fence and removal of a water tank.

1. Secondly, pursuant to s 14B Part 2A of the Act, the applicant seeks orders for the pruning of a hedge of mixed species growing on the respondents' property, and the ongoing maintenance of the hedge at a given height, on the basis that it obstructs sunlight to windows of their dwelling. Other orders sought under this part of the application include the removal of the English Oak mentioned above and an order preventing the respondents from undertaking any further planting along their eastern boundary.

Damage claim under Part 2 of the Act

1. The applicants have included extensive background information with their application, outlining the history of sewer and stormwater blockages near their western boundary, and damage to the dwelling. However on the basis of the evidence before us, we are not convinced that the tree has caused damage to the dwelling and, even if we were so convinced, cannot quantify that damage nor estimate the tree's contribution to the damage were other causal factors involved. Given the importance of this issue in regard to the claim, the applicants were provided with an opportunity to obtain an independent engineer's report and have undertaken to do so. The hearing of this part of…