McKenzie v Selwood

[2017] NSWLEC 1031

Land and Environment Court

New South Wales

Medium Neutral Citation:	McKenzie v Selwood & anor [2017] NSWLEC 1031
Hearing dates:	25 January 2017
Date of orders:	30 January 2017
Decision date:	30 January 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; views from the whole of the property.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ball v Bahramali [2010] NSWLEC 1334 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Pamela McKenzie (Applicant) Diana and Greg Selwood (Respondents)
Representation:	Applicant: Ms M McKenzie (Agent) Respondents: Mr C Shaw (Solicitor)   Solicitors: Respondents: Shaw Reynolds Lawyers
File Number(s):	312096 of 2016

Judgment

1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a row of trees growing on the respondents’ property. The orders are sought on the basis that the trees severely obstruct views of the Georges River from her Sylvania dwelling.

2. The respondents value the trees for privacy. The trees were planted in about 2012 in accordance with approved plans and conditions associated with the construction of the respondents’ dwelling. Sutherland Shire Council granted development consent in 2008.

3. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged.

4. The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge and are they at least 2.5m tall?

5. The trees are a row of Lillypillies planted at the rear of the respondents’ property along the base of a retaining wall which forms the northern boundary of the applicant’s property. The trees have been planted and maintained as a hedge. At the time of the hearing the trees were approximately 4m tall. Therefore, the trees are trees to which Part 2A applies.

6. The key test in applications made under Part 2A is found in s 14E(2) which states:

(2)   The Court must not make an order under this Part unless it is satisfied:

(a)   the trees concerned:

(i)   are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii)   are severely obstructing a view from a dwelling situated on the applicant’s land, and

(b)   the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

7. The applicant has nominated five viewing locations on the ground level of her two storey dwelling. The views are from north-facing windows and terraces. The views to the north are across the Georges River to Bald Face Reserve, Blakehurst and Kyle Bay, and…