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A tree dispute relating to obstruction of views and sunlight

Rees & Anor v Chen [2017] NSWLEC 1502

Background

On 12 September 2017, judgment was delivered in Rees & Anor v Chen [2017] NSWLEC 1502 dismissing an application brought by Rees pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’) against the adjoining property owner, Chen. The applicant sought to have the hedges planted in the adjoining property to be limited to a certain height as it was alleged that the hedges have severely obstructed Rees’ view of the Lane Cover River.

Judgment

  • The Court found that the jurisdictional tests in s 14E(2) are not met in regards to the obstruction of sunlight because i) the obstruction of sunlight was caused by a hedge that pre-existed the applicant’s purchase of the property and ii) the sunlight obstructed was not direct sunlight.
  • The Court also found that the jurisdictional tests are not met in regards to the obstruction of views because i) the view of water was across a side boundary and relatively small portion of the overall view available; ii) the loss of views from other rooms was not severe and iii) the obstruction of views from one room pre-existed the applicant’s purchase of the property.
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Trees Disputes Between Neighbours in NSW

In urban and suburban areas trees can often be the subject of a problem between neighbours. Common reasons include:

  • Roots damaging sewer pipes
  • Parts of a tree damaging the roof or building
  • Overhanging branches
  • Trees interfering with views or sunlight
  • Leaves etc overflowing or blocking gutters
  • Damage to driveways and fences from tree roots and branches

The Trees (Disputes Between Neighbours) Act 2006 (Trees Act) provides for certain tree disputes to be adjudicated by the courts, providing clear remedies and pathways for resolution of disputes.  Prior to the enactment of the Trees Act, it would be common for neighbours to have to seek permission of the owner of the tree, and council, to prune the tree or remove the offending branch or root and/or bring an action in nuisance against the neighbour.  The process has been significantly simplified under the Trees Act.

Mediation

Mediation is a good starting point for neighbours involved in a tree dispute. Mediation can help to resolve disputes in a cheaper manner than litigation.  Further, if a dispute reaches the Land and Environment Court, the Court will not make an order unless the applicant has made a reasonable effort to reach agreement with the neighbour prior to going to court.
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