Richards v Sharp

[2021] NSWLEC 1423

Land and Environment Court

New South Wales

Medium Neutral Citation:

Richards v Sharp [2021] NSWLEC 1423

Hearing dates:

22 July 2021

Date of orders:

22 July 2021

Decision date:

22 July 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – whether the trees are planted to form a hedge – obstruction of a view – overhanging branches – limitations for residents dealing with neighbouring trees

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Texts Cited:

Sutherland Shire Council Development Control Plan 2015, Ch 39

Sutherland Shire Council, Trees on Private Property

Sutherland Shire Council, Trees on Neighbour’s Property

Category:

Principal judgment

Parties:

Dean Richards (Applicant)
Anna Sharp (Respondent)

Representation:

D Richards (Litigant in Person) (Applicant)
A Sharp (Litigant in Person) (Respondent)
J Sharp (Agent) (Respondent)

File Number(s):

2021/120763

Publication restriction:

No

Judgment

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

Background to the application

1. Dean Richards (‘the applicant’) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders relating to three neighbouring trees. Mr Richards, a residential tenant at his Maianbar property, finds the trees overhang his boundary, grow close to his dwelling, and obstruct his views. His neighbours, Anna and John Sharp (‘the respondents’), have refused any permission for him to prune the trees.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F must be considered.

3. If orders are made, they might be those sought by the applicant, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent (in this matter) a severe obstruction of a view from a window of the applicant’s dwelling.

The hearing

4. Due to current COVID-19 restrictions, the hearing took place via telephone. Relying on the available evidence and submissions made during the hearing, I was able to make this decision without requiring a subsequent site view.

The applicant made reasonable effort

5. Mr Richards first raised the issue of overhanging branches with the Sharps in August 2020. Mr Richards…