Price v Harrison

[2013] NSWLEC 1149

Land and Environment Court

New South Wales

Medium Neutral Citation:	Price & anor v Harrison & anor [2013] NSWLEC 1149
Hearing dates:	13 August 2013
Decision date:	13 August 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; trees to be removed and replaced at applicants' expense
Catchwords:	TREES [NEIGHBOURS] Damage to property; Hedge - obstruction of sunlight; Consent orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 McDougall v Philip [2011] NSWLEC 1280 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Mr S Price & Ms R Ferguson (Applicants) Mr J and Mrs J Harrison (Respondents)
Representation:	Applicants: Mr S Price & Ms R Ferguson (Litigants in person) Respondents: Mr J and Mrs J Harrison (Litigants in person)
File Number(s):	20465 of 2013

Judgment

1. COMMISSIONER: This matter concerns four xCupressocyparis leylandii (Leyland Cypress) trees planted at the rear of a property in Mosman.

1. The applicants have applied under s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders to be made requiring the pruning and subsequent maintenance of the trees to an appropriate height and width.

1. During the hearing, in an attempt to resolve the matter, the parties agreed to discuss some options. The parties subsequently proposed consent orders for the removal and replacement of the trees at the respondents' expense.

1. Before the Court can make the orders sought by the parties, the Court's jurisdiction to do so must be engaged.

Part 2A application

1. Dealing first with the Part 2A application. The applicants contend that the four Leyland Cypress trees severely obstruct sunlight to windows of their dwelling. The windows are north and west facing windows of the kitchen/ living area at the rear of the dwelling.

1. In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied.

1. The first of these tests is s 14A(1)(a) which states that Part 2A only applies to groups of two or more trees that are planted so as to form a hedge. If this is the case, s 14A(1)(b) requires the trees to be at least 2.5m tall.

1. The trees are planted along the respondents' rear southern boundary fence. The respondents have owned their property for 17 years and they state that the trees were quite mature when they purchased the property.

1. While the person who planted the trees could not be questioned as to their intent, I am satisfied that the linear arrangement, spacings and species are consistent with the trees being planted so as to form a hedge. At the hearing, the trees were estimated to range in height from about 10m to 13m. Therefore, s 14A(1) is satisfied.

1. The next test is found in s 14E(2). This states:

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

(a) the trees concerned:

(i) are…