Taylor v Cicco

[2016] NSWLEC 1498

Land and Environment Court

New South Wales

Medium Neutral Citation:	Taylor v Cicco [2016] NSWLEC 1498
Hearing dates:	25 October 2016
Date of orders:	28 October 2016
Decision date:	28 October 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge – views; obstruction not severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Interpretation Act 1987
Cases Cited:	Deville & anor v Frith & anor [2014] NSWLEC 1002 Haindl v Daisch [2011] NSWLEC 1145 Jayawardena v Salvia & anor [2015] NSWLEC 1191 McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Adam Taylor (Applicant) Belinda Cicco (Respondent)
Representation:	Applicant: Mr A Taylor (Litigant in person) Respondent: Ms N Hammond (Barrister)   Solicitors: Respondent: Cohen & Krass
File Number(s):	175678 of 2016

Judgment

1. COMMISSIONER:   The applicant, Mr Taylor, purchased his apartment in 2013; he contends that since then, trees on the respondent’s property have grown and now severely obstruct views from his dwelling.

2. Mr Taylor has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of four trees growing at the rear of the respondent’s property.

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)(a) 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?

5. There are five X Cupressocyparis leylandii (Leyland Cypress) [cultivar uncertain] planted along the rear boundary of the respondent’s property. According to the respondent’s sworn affidavit (Exhibit 1), the trees were planted in 1999 in order to provide a privacy screen between the applicant’s unit block and the respondent’s backyard.

6. The trees are linearly arranged and are in excess of 2.5m tall and are thus trees to which Part 2A applies. The tree closest to Mr Taylor’s unit is the southernmost tree – identified in the application claim form as Tree 1.

7. 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.

8. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling on the applicant’s land, the obstruction…