Approximately 13 years ago a new apartment complex known as “The Grid” was constructed in Rushcutters Bay. The common open space on the north side of the building includes a swimming pool and landscaping: a row of Honey Locust trees grows alongside the pool and Lilly Pilly hedges line the boundaries. Apartments on the north side of the building enjoy harbour views to the north. At a more oblique angle their occupants can see, and perhaps be seen from, the neighbouring apartment building to the east, known as “The Mark”. The Lilly Pilly hedge along the eastern boundary provides some visual screening between lower floors of the two buildings. The hedge is currently around 4.5 metres tall, but has in the past been over 7 metres tall. It was planted in 2001.
Mr Scott (“the applicant”) has been an owner and occupier of a ground floor apartment in The Mark building since February 2008. He owns the apartment with his wife and together they live there with their young children. Their apartment is on the western side of the building, much of it adjacent to the large built form of The Grid, but parts of their apartment, including the kitchen and a small sunroom or eating area, are adjacent to The Grid’s open space. A narrow access path, common property of The Mark, separates Mr Scott’s apartment from the common boundary, along which a retaining wall extends north from The Grid’s building. The retaining wall is approximately 1.7 metres tall. Behind the retaining wall is the Lilly Pilly hedge.
The ground level of The Grid’s open space is considerably higher than floor level of Mr Scott’s apartment. The presence of the Lilly Pillies atop the retaining wall therefore blocks light to the apartment window. Mr Scott has obtained a permit to extend the window down to floor level. However he is concerned that the hedge limits their solar access and, along with occupiers of other apartments at The Mark, has tried to negotiate with owners of The Grid (“the respondent”) for the trees to be maintained at a lower height. The Respondent made offers for pruning that did not satisfy Mr Scott, but nevertheless pruned the Lilly Pillies, reducing their height from around 7 metres to 4 metres. The respondent’s intent seems to be to maintain them at their current height by pruning them annually to 4 metres.
Still concerned about his lack of solar access, Mr Scott has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the “Trees Act”), seeking orders for the trees to be pruned to, and maintained at, a height of 1.2 metres…
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