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3 Tree-Lessons from the Land & Environment Court

Trees can mean many things to many people, for the ancient Norse people Yggrasil “the giant tree of life” connected the heavens and the earth, for real estate agents in metropolitan Sydney it delivers a mystical extra $40K to the selling price, and for the ancient welsh druids – stationary lovers. This varied appreciation of trees also extends to the many and various Class 2 applications in the Land & Environment Court. One person’s tree delights, is another’s waking terror.

  1. Annoyance or Discomfort of the Third Kind

If your neighbour’s trees or hedges continue to deposit leaves and other detritus all over your property, the best solution maybe to forgo the Class 2 Application and pick up a rake instead – as the Court has found that Gaia’s garbage will not be enough to engage an application by an affected land owner pursuant to section 7 (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act):
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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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