1 COMMISSIONER: This is an application made under s 14 Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made the owner of a property in St Ives against the owners of two hedges growing on adjoining land.
2 The applicant was represented by her son, Mr R. Ball and the respondents were represented by Mr J Gerathy, solicitor.
3 The applicant is seeking the reduction and ongoing maintenance of the hedges to a height of 2.5m to be undertaken by the respondents at the respondent’s expense. The applicant contends that the hedges severely obstruct three nominated views from the dwelling and severely obstruct sunlight to ten windows of the dwelling.
4 The respondents value the hedges for the privacy they afford and do not want them pruned. However, if required to do so by the Court, the respondent’s alternative orders are to reduce the trees to a height of 7m at the initial expense of the applicant with the maintenance thereafter undertaken by the respondents.
5 The hedges are two rows of xCupressocyparis leylandii Leighton Green (Leyland Cypress). Hedge 1 is a row of 13 trees along the generally eastern boundary of the respondent’s property. The other is a row of 8 trees on the southern boundary. The hedges are approximately 13m high.
6 The affected windows are on the north-western portion of the rear of the applicant’s property. Windows W1-W3 are on the north-western side of a family/lounge room. There are no substantial eaves on this part of the house. One of the nominated views, V1, is associated with W1 and W2.
7 W3 includes the glass top of a door. W4 and W5 are on the western return of this portion of the house in a dining area attached to the kitchen. The eaves and guttering outside these windows extend approximately 760mm from the wall of the house. There is a retractable canvas awning on W4.
8 W6 –W10 also face north-west. The eaves and guttering on this section extend 860mm from the wall. W6 is the glass top of an external door from the laundry. W7 is a laundry window. W8 is a frosted window of the bathroom. W9 is the window of what has been used as a study…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ball v Bahramali [2010] NSWLEC 1334
Case
[2010] NSWLEC 1334
Decision Date
CaseChat Overview and Summary
This case involved an application made by Mrs J Ball under section 14 Part 2A of the Trees (Disputes Between Neighbours) Act 2006, seeking the reduction and maintenance of hedges on her neighbour's property. Mrs Ball claimed that the hedges obstructed views and sunlight to her property, specifically to ten windows of her dwelling. The respondents, Hessam and Mrs Petty Bahramali, valued the hedges for the privacy they provided and opposed any pruning. The primary legal issues the court had to address were whether the hedges constituted a severe obstruction of sunlight or views, and if the applicant had made a reasonable effort to reach an agreement with the respondents.
The court determined that the application for an order under the Act was not dismissed for lack of notice, as the application specified a 21-day notice period for serving documents and a preliminary hearing. The court also found that while the applicant's efforts to reach an agreement were less than ideal, the period between filing the application and the preliminary hearing provided sufficient time for negotiations, aligning with the court's experience in similar cases. Regarding the severity of the obstruction, the court concluded that the hedges did obstruct some views from the applicant's dwelling but found these views to be ordinary suburban views, not severe. Additionally, the court found that the amount of sunlight received by the applicant's windows met the typical standards for solar amenity, and thus did not constitute a severe obstruction.
The court dismissed the application in its entirety, finding that the applicant had not demonstrated that the hedges severely obstructed sunlight or views from her dwelling. The court's decision was based on the nature and extent of the views obstructed, the reasonable efforts made to negotiate with the respondents, and the severity of the obstruction as defined by the Act and relevant case law.