Wright v Jonjil Pty Limited

[2016] NSWLEC 1070

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wright v Jonjil Pty Limited [2016] NSWLEC 1070
Hearing dates:	22 February 2016
Date of orders:	26 February 2016
Decision date:	26 February 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of sunlight; inconclusive evidence – insufficient for the making of orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Deville & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Category:	Principal judgment
Parties:	Mr C Wright (Applicant) Jonjil Pty Limited (Respondent)
Representation:	Applicant: Mr C Wright (Litigant in person) Respondent: No attendance
File Number(s):	21066 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a Leyland Cypress hedge growing on the respondent’s Kellyville property. The orders are sought on the basis that the trees severely obstruct sunlight to windows of the applicant’s dwelling.

2. As usual in these matters, the hearing commenced on site outside the respondent’s property. I knocked on the door and rang the doorbell three times; there was no response. I am satisfied on the material contained within the Court file that the respondent was appropriately served with both the Tree Dispute Application and the Directions of the Court. On this basis, the matter proceeded without the respondent.

3. In applications made under Part 2A of the Act, there are a number of jurisdictional matters that must be sequentially satisfied in order to engage the Court’s powers to make orders under s 14D.

4. The first of these is whether the 18 trees the subject of the application are planted so as to form a hedge and which rise to a height of at least 2.5m (s 14A(1)). The trees in question were easily seen from the applicant’s property. I am satisfied on the basis of species, spacing and arrangement that the trees are planted so as to form a hedge; they are approximately 10m tall. Therefore s 14A(1) is met.

5. The next jurisdictional test, in s 14E(1)(a), is whether the applicant has made a reasonable effort to reach an agreement with the owner of the land on which the trees are situated.

6. An uncontested statement in the application claim form indicates that the applicant brought the problem to the owner/occupant of the respondent’s property on several occasions; these attempts also included the provision of an arborist’s report commissioned by the applicant. On this basis I am satisfied that s 14E(1)(a) is met.

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)…