The Part 2A application
17The applicant contends that the trees growing in the respondents' backyard severely obstruct sunlight to windows of the residential units. She is seeking orders requiring the respondents to cut the trees "to a certain height" (the height is not specified).
18In applications made under Part 2A there are a number of jurisdictional tests that must be satisfied before any orders can be made for any intervention with the trees. The process is described in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 as a series of 'gates' that must be passed through.
19The first of the 'gates' is s 14A(1)(a) this states:
(1) This Part applies only to groups of 2 or more tress that:
(a) are planted (whether in the ground or otherwise) so as to form a hedge,
20In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed. Elsewhere, His Honour states that Part 2A does not apply to self-sown or individual trees.
21'So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where, in part, the Commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge".
22In the matter before me the trees nominated by the applicant as causing the obstruction of sunlight are a number of mature Melaleuca quinquenervia that are assumed to have been planted by a previous owner of the respondents' property. This species is locally indigenous and given the size of some individual specimens it is also possible that some of the trees may be remnants. The trees are randomly planted/ located throughout the respondents' large backyard; some are in small groups and others are well spaced and interspersed with other tree species. The applicant's diagram in the application claim form illustrates this arrangement.
23As the tree planter was not present at the hearing, the purpose of the planting could not be ascertained nor was it possible to determine if any of the trees were remnants, however, I consider it highly unlikely that any reasonable person off the street would perceive the Paperbarks as forming a hedge.
24I am not satisfied on the evidence before me that the Paperbarks satisfy s 14A(1)(a) and therefore that 'gate' remains closed and the Court cannot proceed to consider any obstruction of sunlight as a consequence of those trees.
25The only trees on the respondents' property about which the applicant has raised concerns and which satisfy s 14A(1)(a) are a row of six young/semi-mature Lillypillies. These trees were planted by the first respondent's mother-in-law along a section of the common fence to provide a privacy screen. They are in excess of 2.5m and therefore also satisfy s 14A(1)(b).
26Therefore, 'gate' 14A(1) is opened. The next relevant 'gate' is s 14E(2)(a)(i) which states that:
(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,
27The applicant admits that these trees are not obstructing any sunlight to any window of her property and I agree. Therefore, as s 14E(2)(a)(i) is not met, that gate remains closed and no orders can be made for any intervention with the Lillypillies.