Land and Environment Court New South Wales

• Medium Neutral Citation: Gleeson v Anger [2012] NSWLEC 1184
• Hearing dates: 9 July 2012
• Decision date: 09 July 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight not severe; no risk of damage in near future; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson and anor [2009] NSWLEC 1148; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mrs Laurel Gleeson (Applicant); Mrs Olive Anger (Respondent)
• Representation: Mrs Laurel Gleeson (Applicant in person); Mrs Olive Anger (Respondent in person)
• File Number(s): 20364 of 2012

Judgment

1 COMMISSIONER: Due to her concerns that neighbouring trees may cause damage to her property in future, and that they block sunlight to her window, Mrs Gleeson makes this application under both Part 2 and Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act"). She seeks removal of several trees. Mrs Anger, the respondent in this matter, enjoys the benefits of the trees. She recently removed a fig tree but wishes to retain the remaining trees.

2 For the Court to make orders under Part 2 of the Act, I must be satisfied that the trees are likely to cause damage in the near future. To make orders under Part 2A I must be satisfied that the trees form a hedge and that they severely obstruct sunlight to a window.

The onsite view

3 The hearing took place onsite, allowing observations of the trees and their situation and of Mrs Gleeson's property.

4 Mrs Anger's property frontage is to the north. Mrs Gleeson's property frontage is to the south, so the rear of her dwelling faces north. They share a common boundary at the rear of each property. The trees are in Mrs Anger's rear courtyard, at the south of her property, adjacent to the common boundary. From the east, the trees are:

T1 - Maple, approximately 3 m tall;

T2 - Ficus benjamina - removed to a small stump;

T3 - Mandarin, approximately 2 m tall;

T4 - Magnolia, approximately 3 m tall;

T5 - Fuchsia, pruned very low.

5 The fig, T2, has been removed, leaving only a small stump that Mrs Anger says has been poisoned twice. She ways if it reshoots it will be poisoned again. Its removal leaves a gap between the maple (T1) and the other trees, which are grouped within the southwest corner of the courtyard approximately 3 m west of the maple.

Part 2 - risk of damage in the near future

6 There is no damage to property caused by the trees in the past or present. Mrs Gleeson is concerned that the trees will damage the boundary wall, pipes, paving and her dwelling. The trees are all relatively small - there is nothing over 3.5 m in height. The fig, which was of most concern to Mrs Gleeson due to its spreading root system, has been removed. There was no evidence that damage is beginning to occur or is likely to occur within the next 12 months. The principle established by the Court in Yang v Scerri [2007] NSWLEC 592 states that, ordinarily, 12 months is a reasonable timeframe to be considered as the near future. I see no extraordinary circumstances in the matter before me that would suggest a longer timeframe would be more appropriate.

7 Because the trees have not caused damage to Mrs Gleeson's property, and I am not satisfied that they are likely to cause damage within the near future, or are likely to cause injury, they do not meet the jurisdictional test at s 10(2)(a) and I cannot make orders under Part 2 of the Act.

Part 2A - obstruction of sunlight

8 Due to the heights of the trees and their distance from Mrs Gleeson's dwelling, the obstruction of sunlight to her window is minimal. I acknowledge that the room at the rear of her dwelling faces north, it is a living room, and it has one main window to the north. Mrs Gleeson sits near that window and enjoys the sunlight that warms the room during winter. However, the trees can only obstruct sunlight to this window during the winter months when the sun is lowest in the northern sky.

9 T1, the Maple, is deciduous and, although its bare branches cast shadows, it does not cause any severe obstruction of sunlight during the winter months.

10 T2 has been removed.

11 T3 is too small to provide any severe obstruction of sunlight to the window.

12 T4 casts a shadow across the window for a period of approximately one hour, according to Mrs Gleeson, between noon and 1 pm. While this may not be desirable, it cannot be construed as a severe obstruction when the remaining hours of light during the day are taken into consideration. I noted that at 1:50 pm there was no obstruction of sunlight caused by the magnolia.

13 T5 has been pruned below fence height and does not cause any obstruction of sunlight to the window.

14 As there is no severe obstruction of sunlight, according to s 14E(2)(a)(i) the Court must not make any orders under Part 2A of the Act. It is therefore not necessary for me to consider whether or not the trees form a hedge as required by s 14A(1) of the Act.

Conclusions

15 As a consequence of the foregoing, the Court cannot make any orders regarding these trees and the application is dismissed. It was noted at the hearing that the trees will continue to grow. Mrs Gleeson expressed her concerns regarding any greater obstruction of sunlight to her window and Mrs Anger heard these concerns. Mrs Anger is also aware that her trees are close to structures and that tree growth, over time, can cause damage. Mrs Gleeson was informed that, should circumstances change in future, she could make another application to the Court, as discussed in Hinde v Anderson and anor [2009] NSWLEC 1148.

Orders

(1) The application is dismissed.

__________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 13 July 2012