Lutze v Graham

[2012] NSWLEC 1075

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lutze v Graham & anor [2012] NSWLEC 1075
Hearing dates:	27 March 2012
Decision date:	27 March 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application for pruning dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; views and sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Tooth v McCombie [2011] NSWLEC 1004 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting v Warringah [2004] NSWLEC 140 Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Mrs L Lutze (Applicant) Mr S and Mrs N Graham (Respondents)
Representation:	Applicant: L Lutze (Litigant in person) Respondents: S & N Graham (Litigants in person)
File Number(s):	21172 of 2011

Judgment

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

1. COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mona Vale against the owners of trees growing on an adjoining property.

1. The applicant is seeking orders for the pruning of a row of six Leyland Cypress trees to the height of the first floor windowsill of her dwelling.

1. The orders are sought on the basis that the trees severely obstruct sunlight to windows of the applicant's dwelling and obstruct views from her dwelling.

1. The on-site hearing commenced on the respondents' land with an inspection of the trees. The trees are planted along the south-eastern side of the respondents' driveway. Both parties' properties are on battleaxe blocks some distance from the street. The respondents' driveway adjoins a number of other properties.

1. I am satisfied that the trees meet the criteria in s 14A(1) and are a 'hedge' for the purpose of the Act.

1. The respondents have owned their property for 11-12 years; the trees and the applicant's dwelling were present when they moved in. The applicant purchased her property some two years or so later.

1. The trees are in average health and show signs of past pruning for height control. Recently they have been extensively pruned to enable access for building works currently being undertaken by the respondents. The lower portions of the trees have been substantially thinned.

1. Notwithstanding the condition of the trees, the respondents place some value on them for the privacy they afford their front garden and for the screening they provide. The respondents stated that when their renovations are completed, the garden will be landscaped and this may involve removal of some of the trees.

1. The hearing moved to the applicant's property. There are two elements of the application - obstruction of sunlight and obstruction of views.

1. The nominated windows and viewing points are on the north-western side of the first floor (upper level) of the applicant's dwelling. W1/V1 is the kitchen window, W2/V2 and W3/V3 are windows in the adjoining dining room.

1. The relevant jurisdictional tests are s 14E(2)(a)(i) and (ii) and s 14E(2)(b). These state that: