Taylor v Dixon

[2022] NSWLEC 1083

Land and Environment Court

New South Wales

Medium Neutral Citation:

Taylor v Dixon [2022] NSWLEC 1083

Hearing dates:

11 February 2022

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight – whether trees are planted so as to form a hedge – whether the obstruction is severe – whether the applicant has lost access to sunlight – application refused

Legislation Cited:

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

Cases Cited:

McDougall v Philip [2011] NSWLEC 1280

Category:

Principal judgment

Parties:

Clare Taylor (Applicant)
Rod Dixon (First Respondent)
Sharne Aldridge (Second Respondent)

Representation:

Counsel:
C Taylor (Litigant in Person) (Applicant)
B Richardson (Agent) (First and Second Respondents)

File Number(s):

2021/309627

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. Clare Taylor (‘the applicant’) bought her Mosman property in December 2020. In November 2021 Ms Taylor applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for two cypress trees on neighbouring land belonging to Rod Dixon and Sharne Aldridge (‘the respondents’) to be pruned or removed due to the sunlight obstruction caused by those 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 on adjoining land 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 all of these tests are met, the Court can make orders at s 14D to remedy, restrain or prevent a severe obstruction of, in this case, sunlight to a window of the applicant’s dwelling.

4. The hearing took place via MS Teams. Relying on the available evidence and submissions made during the hearing, I was able to make this decision without requiring a subsequent site view. Ms Taylor was self-represented; Mr Richardson, as agent, represented the respondents.

The applicant made reasonable effort

5. Ms Taylor wrote to Ms Aldridge and Mr Dixon in September 2021 explaining the problem she had with their trees obstructing sunlight and looking to find a solution. Their response made it clear that they were unwilling to take any action. It was clear to Ms Taylor…