Whitty v Shearman

Land and Environment Court

New South Wales

Medium Neutral Citation:	Whitty v Shearman & Anor [2017] NSWLEC 1560
Hearing dates:	18 September 2017
Date of orders:	05 October 2017
Decision date:	05 October 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Pruning ordered see [31]
Catchwords:	TREES [NEIGHBOURS] : Hedge; obstruction of sunlight and views; trees to which Part 2A applies; balancing of interests; arboricultural evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Coleman & Anor v Leddy & anor [2013] NSWLEC 1094 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Jeremy Whitty (Applicant) Peter & Bettina Shearman (Respondents)
Representation:	Applicant: Mr C Drury (Solicitor) Respondent: Mr D Baird (Solicitor) Solicitors: Applicant: Sparke Helmore Lawyers Respondents: Baird Lawyers
File Number(s):	2017/157436
Publication restriction:	No

JUDGMENT

1. COMMISSIONER:    Tambourine Bay is a small bay off the Lane Cove River. The Bay is bounded by the suburbs of Longueville to the south and Riverview to the north. Tambourine Creek flows into the Bay from the east. A significant portion of the eastern, northern, and north-western shoreline retains its natural vegetation of mangroves and Eucalypt forest.

2. The parties in these proceedings own adjoining properties on the southern shoreline; both properties enjoy direct access to the water.

3. The applicant has filed a Class 2 application pursuant to s 14B, Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘Trees Act’). The applicant contends that trees growing along the common side boundary between the parties’ properties are severely obstructing sunlight to windows of his dwelling and views of the Bay from his dwelling.

4. The trees are identified and numbered in a schedule included in the application claim form (Exhibit A). The trees are a row of eleven Leighton Green Cypress trees (T20-T30), one Banksia (T18), and twelve other trees, mostly Blueberry Ash (T1-T4, T10-17). The schedule, presumably prepared by the applicant, includes the approximate planting date and their height. The height is presumed to be the height of the trees on or around 17 March 2017 (the date given on each page of the body of the application claim form). The schedule also includes a row of Viburnum that is not referred to in the proposed orders.

5. Essentially the orders seek the following:

• pruning and biannual maintenance of the Leighton Green trees to a height level not exceeding the top of the concrete wall along the common boundary RL 8.62 (effectively just above the window sill of W2 – bedroom window);

• pruning and biannual maintenance of the Banksia to a height level not to exceed RL 10.85, level with the applicant’s verandah; and

• pruning and biannual maintenance of the twelve other trees to a height of 1.8m above ground level.

• All work is to be done at the respondents’ expense. Other proposed orders relate to the standard of work, removal of debris, access and future plantings.

6. The respondents have proposed alternative orders (Exhibit 9); some…