Land and Environment Court New South Wales

• Medium Neutral Citation: Goodwin v Haddad & anor [2014] NSWLEC 1145
• Hearing dates: 21 July 2014
• Decision date: 21 July 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld in part: see orders at paragraph (17)

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of sunlight; orders for pruning
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: APPLICANT; Norma Goodwin; RESPONDENTS; Buthina AlRabadi and William Haddad
• Representation: APPLICANT; Patricia Cook (Agent); RESPONDENTS; Buthina AlRabadi and William Haddad; (Litigants in person)
• File Number(s): 20106 of 2014

Judgment

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

The application

1 A childcare centre sits among residential dwellings in Old Guildford, in Sydney's western suburbs. Screening vegetation growing within the childcare centre, around most of its boundaries, was apparently a requirement of the Development Application approval for the centre.

2 Ms Goodwin (the applicant) lives in the dwelling to the south of the childcare centre. She has applied to the Court pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for that section of the screening vegetation that is along the common boundary near her dwelling to be pruned to prevent an obstruction of sunlight to her windows. She wants the trees pruned to reduce their height to around 60 cm above the top of the 1.8 metre tall boundary fence, and to remove overhanging branches. She also seeks costs for making the application but, as Commissioners of the Court do not have the jurisdiction to award costs, that would require a Notice of Motion to be heard by a Judge or the Registrar, should she wish to pursue that element of her application.

3 The owners of the childcare centre, Ms AlRabadi and Mr Haddad (the respondents) say they have the trees pruned regularly to maintain them at 3.5 metres height and that they were pruned recently, including overhanging branches.

4 Before making any orders the court must be satisfied of some key jurisdictional tests: firstly, that the trees are planted so as to form a hedge and that they are at least 2.5 metres tall; and, secondly, that they cause a severe obstruction of sunlight to windows of the applicant's dwelling. If these tests are satisfied then I must consider a range of discretionary matters before making orders as I see fit to remedy, restrain or prevent the obstruction.

Jurisdiction

5 According to the respondents, the trees were planted as a visual screen. They form a continuous row along the southern boundary (and other boundaries) mostly in a single and regular line, but for a length of this southern boundary where the planting comprises two close and parallel rows. The planting comprises several species, including Lilly Pilly, Photinia, Leyland Cypress, Viburnum, Bottlebrush and a Chinese Elm, but the effect of the planting is such that it forms a continuous block of foliage along the boundary. The section of vegetation along the common boundary therefore appears as a single hedge and was planted as one. Most of the trees are more than 2.5 metres tall; a few are slightly shorter. I am satisfied of the jurisdictional tests at s 14A(1) regarding the hedge.

6 On the winter's morning of the onsite hearing the entire northern wall of the applicant's dwelling was in shade, other than a narrow section high on the wall near the eaves. Windows in this wall were almost completely in shade. The boundary fence itself causes shading on the lowest part of the wall, but most of the shadow at window level is caused by the trees' foliage. The respondents provided shadow diagrams and a report from an architect, arguing that these show the sunlight obstruction is not severe and that the windows receive at least three hours of sunlight on the winter solstice. I note that the report does not comply with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. It does not state the source for the data used in preparing the shadow diagrams, such as plans and relevant measurements. Most importantly, at the onsite hearing this morning I observed significantly less sunlight on the applicant's wall than the diagrams show for 10 a.m. on the winter solstice, the date when the most severe shading should occur. I would therefore expect less shadow on the wall today than is shown in the diagram. This raises some doubts about the accuracy of the diagrams. Having observed the situation I am satisfied of the jurisdictional test at s 14E(2)(i): there is a severe obstruction of sunlight caused by the trees.

Findings

7 The windows along the northern wall of the applicant's dwelling are, from the front: a bedroom window, ensuite window, two windows for the lounge and dining rooms, and three windows for a large living room with a desk and spare bed. This last room was built in the last 12 months, before which time it was a terrace or porch. The applicant says that the height and overhang of the neighbouring trees makes these rooms dark.

8 Considering the discretionary matters under s 14F of the Act, the relevant issues are discussed below.

9 Ms Goodwin has lived at her property since 2003. The trees were planted since then, as part of a Development Application approval. Based on the respondents' submissions and a copy of a letter from Fairfield City Council (Council) the Development Application approval apparently included maintenance requirements for the planting. However the details of this maintenance, such as at what height the trees are to be maintained, are not available.

10 The windows include two living areas where the applicant could be expected to spend some time. The applicant is elderly and it is also reasonable to expect that she may spend some time in her bedroom during the morning. The trees predated the room at the rear of the dwelling so there is a lesser expectation that windows there should remain free of sunlight obstruction.

11 Pruning the trees can restore sunlight to the applicant's windows without significantly damaging the trees. They are all relatively young trees. The species all tolerate and are suitable for hedging. They are species that, without regular pruning, will grow quickly and form an even taller dense screen. For these reasons I find it appropriate that orders be made for pruning the trees.

12 The respondents applied to Council for the trees to be pruned and the application was refused in April 2014. There was no assessment of sunlight obstruction as part of that refusal, as indeed it may well be that Council is not required to consider that. No evidence of the Development Application maintenance requirements was adduced at today's hearing.

13 The applicant wants the trees pruned every four months. The respondents say they intend to prune them every six months anyway, and I accept that this frequency is more reasonable.

14 Pruning the trees to 2.5 metres height would restore sunlight without adversely affecting the trees' contribution to privacy and screening.

15 Although trees at the northern and southern ends of the row contribute less to the sunlight obstruction, and at the south it is only the newer part of the house that is affected, having considered the respondents' own submissions regarding pruning (that is, that they intend to prune the entire hedge to 3.5 metres and overhanging branches every six months) it is reasonable that the entire row of trees be pruned for consistency of appearance.

16 Ms Goodwin's property is the rear property of a battle-axe subdivision. The trees for which I make orders are all of those along her northern boundary, which is slightly less than half the length of the respondents' entire southern boundary. There are approximately 50 small trees in this hedge, in two rows toward the rear of the property and a single row toward the front.

Orders

17 Therefore, the orders of the court are:

(1) The application is upheld in part.

(2) During the first two weeks of both March and September, beginning September 2014, the respondents are to engage a suitably experienced contractor with appropriate insurances to prune the hedge along the common boundary with the applicant's property, reducing the trees' height to no more than 2.5 metres above ground level and removing any overhanging branches.

(3) The respondents' contractor is to remove all debris from the works.

(4) On reasonable notice and during reasonable hours of the day the applicant is to provide all access necessary for the respondents' contractor to carry out the works.

____________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 23 July 2014