Taylor and anor v Smith and anor

Land and Environment Court

New South Wales

Medium Neutral Citation:	Taylor & anor v Smith & anor [2014] NSWLEC 1088
Hearing dates:	13 May 2014
Decision date:	16 May 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; pruning ordered see paragraph [49]
Catchwords:	TREES [NEIGHBOURS] Hedge; sunlight and views; privacy issues;
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Mosman Local Environmental Plan 2012
Cases Cited:	Blau v Levi [2010] NSWLEC 1371 Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Golchin v Turner [2013] NSWLEC 1138 Johnson v Angus [2012] NSWLEC 192 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Ms L and Mr M Taylor (Applicants) Mr P Smith and Ms M Crompton (Respondents)
Representation:	Applicants: Mr M Taylor (Litigant in person) Respondents: Mr G Prichard (Solicitor) Respondents: Prichard Lawyers
File Number(s):	20098 of 2014

Judgment

1. COMMISSIONER: The applicants purchased their Mosman property in 1991. In 2006, they completed construction of a three-storey dual occupancy. The applicants reside in the rear dwelling. The respondents' property is down slope and to the north of the applicants' property.

1. In late 2005, before completion of the applicants dwelling, the respondents planted a row of Leyland Cypress along their southern boundary in order to provide a visual screen and to afford privacy to their backyard and the rear of their dwelling.

1. The applicants have applied under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the twice yearly pruning of the Leyland Cypress, and a pot of bamboo, to a height of 1.2m above the top of the dividing fence. These orders are sought on the basis that the trees severely obstruct sunlight to windows of their dwelling and severely obstruct views from their dwelling.

1. Section 14B states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

1. The respondents oppose pruning to this level as they contend it will significantly reduce their privacy by opening up views of their outdoor entertaining areas from the top two levels of the applicants' dwelling.

1. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether Part 2A applies to the trees the subject of the application.

1. Section 14A(1) states:

This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

1. There is no dispute between the parties that trees 1-13, the row of Leyland Cypress, are planted so as to form…