Moody v Robertson

[2017] NSWLEC 1147

Land and Environment Court

New South Wales

Medium Neutral Citation:	Moody v Robertson & anor [2017] NSWLEC 1147
Hearing dates:	23 March 2017
Date of orders:	23 March 2017
Decision date:	23 March 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight; insufficiency of evidence of severity of obstruction, including in the period of applicant’s ownership
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Christopher Moody (Applicant) John and Carol Robertson (Respondents)
Representation:	Applicant: Mr C Moody (Litigant in person) Respondents: Mr J Robertson (Litigant in person)
File Number(s):	2017/8429

judgment

1. COMMISSIONER:    In April 2015 the applicant purchased his West Pennant Hills property. Growing along the western boundary of the adjoining property was, and is, a row of Lillypillies estimated, by the applicant, to have been 6-8m at the time of purchase. In the application claim form, the trees are said to be currently 6-8m tall.

2. The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the respondents to:

1. Trim the trees to a maximum of 2.5 metres as per the definition in Section 2A of The Trees Act.

2. If it’s not possible to trim the hedge without killing it, then to remove it and plant more suitable plants that do not grow more than 2.5 metres tall.

3. These orders are sought on the applicant’s contention that the trees severely obstruct sunlight to an east-facing window, identified as W1. According to the application claim form:

No sunlight reaches W1 at all during the day, as from sunrise to midday the hedge obstructs the light, and as W1 faces East, there is obviously no sunlight after midday.

W1 is completely obstructed from any possible light by the hedge regardless of the time of year as the hedge is on the Eastern boundary between W1 and track of sun.

4. The respondents submit there is no factual basis for the applicant’s contention, and for the reasons listed in their evidence, (Exhibit 1), oppose the proposed orders. In rebutting the applicant’s case they have provided photographic evidence, a copy of the original sales brochure, downloaded images from SixMAPS and GoogleEarth™, and a DVD of the sun’s path and shadow casting showing the worst case hedge height of 8m combined with the applicant’s gazebo and the dividing fence; all of which they say shows sunlight reaching W1 at various times of the year but with obvious obstruction caused by shading from the applicant’s gazebo. The respondents’ evidence indicates that W1 faces north-east rather than east.

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

6. 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 which attain a height of at least…