Land and Environment Court New South Wales

• Medium Neutral Citation: Wallace v Fourways Motors (Bankstown) Pty Ltd [2013] NSWLEC 1010
• Hearing dates: 16 January 2013
• Decision date: 16 January 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; obstruction not severe; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr James Wallace (Applicant); Fourways Motors (Bankstown) Pty Ltd (Respondent)
• Representation: Mr James Wallace(Applicant in person); Mr Anthony Keogh (Agent for the Respondent)
• File Number(s): 20985 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: Mr Wallace's residential property in Jannali shares its rear boundary with a childcare centre. Mr Wallace is concerned that two trees within the playground of the childcare centre are obstructing sunlight to his property. He has applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for the two trees to be pruned to the height of a solid boundary wall.

2 Mr Keogh, representing the respondent, says the trees provide shade within the playground area of the childcare centre and screening for privacy. He says the extent of pruning requested by Mr Wallace would harm the trees and result in a loss of shade and privacy.

Onsite view

3 The two trees are Cupaniopsis anacardioides (Tuckeroo) approximately six metres tall. One tree ("T1") is approximately one metre from the common boundary; the other ("T2") is around five metres from the boundary. Tree T2 has a healthy and dense canopy. The canopy of T1 is less dense - Mr Keogh says this is due to root damage that occurred when trenching for services took place near the base of this tree. Both trees provide shade to the playground area. At the point nearest to T1 the solid boundary wall is 2.5 metres tall. Atop this is a transparent screen that reaches to approximately 3.4 metres above ground level.

4 The rear of Mr Wallace's dwelling faces west and is approximately 20 metres east of the common boundary between the two properties. The trees were viewed from both levels of the dwelling. There is also a row of palm trees in a garden bed on Mr Wallace's property, along the common boundary.

The trees do not severely obstruct sunlight to a window

5 The application filed with the Court claims that the trees cause an obstruction of sunlight to the outdoor entertaining area. At the onsite hearing Mr Wallace said that the trees shade the pool and garden during the afternoon.

6 According to s 14E(2)(a)(i) of the Act, the Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land. (This application does not concern views.)

7 When asked if there was such an obstruction, Mr Wallace said that during winter the trees obstruct sunlight to windows of his dwelling in the late afternoon. In the absence of shadow diagrams showing otherwise, I am not satisfied, after observing the situation, that there can be any severe obstruction of sunlight to the dwelling windows. The nearest tree is 20 metres from the dwelling and is only six metres tall. Any shadow from the tree could only fall upon the dwelling just prior to sunset, when the shadows of the palms and the two-level building to the west would also be present. Even by itself, the shadow of the trees for such a short amount of time could not be regarded as a severe obstruction of sunlight. As I am not satisfied that the trees concerned are severely obstructing sunlight to a window, the Court "must not make an order".

8 There is also no evidence that the two trees are "planted so as to form a hedge" as required by s 14A(1)(a). However, even if the applicant could establish this to be the case, which appears unlikely, my findings regarding s 14E(2)(a)(i) prevent the making of any orders.

9 Consequently, the application is dismissed.

Conclusion

10 The orders of the Court are:

(1) The application is dismissed.

__________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 24 January 2013