Chambers v Graham

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chambers v Graham [2020] NSWLEC 1457

Hearing dates:

27 July 2020

Date of orders:

28 September 2020

Decision date:

28 September 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court Orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe – whether the applicant has lost access to sunlight

Legislation Cited:

Trees (Disputes Between Neighbours Act) 2006 (NSW)

Cases Cited:

Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category:

Principal judgment

Parties:

Michael Chambers (Applicant)
Simon Graham (Respondent)

Representation:

M Chambers (litigant in person) (Applicant)
S Graham (litigant in person) (Respondent)

File Number(s):

2020/112289

Publication restriction:

No

Judgment

Background to the application

1. In February of this year Michael Chambers (‘the applicant’) purchased a residential property in Pottsville, on the far north coast of New South Wales. He and his family moved to the area to retire. During the month of March Mr Chambers had two conversations with his new neighbour, Simon Graham (‘the respondent’), concerning a row of trees (‘the hedge’) growing on Mr Graham’s property, along their common boundary. Mr Chambers explained that, due to the trees, his kitchen and living areas are dark, even during bright mornings. He wanted the trees pruned to allow more light to reach his dwelling. Mr Chambers obtained quotes for having the trees pruned and offered to share the costs.

2. In April Mr Chambers then filed his application to the Court, pursuant to s 14B of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’), seeking orders for the trees to be pruned and maintained at regulation fence height or at no more than 2.5 metres. Alternatively, he sought removal of the trees and replacement with “less invasive” trees maintained at a height no greater than 2.5 metres.

3. Mr Chambers’ application included proposed orders under Part 2 of the Trees Act, but he clarified during an earlier directions hearing that his application is made only under Part 2A, seeking orders to address an obstruction of sunlight caused by neighbouring trees.

The hearing

4. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. As well as the material initially filed, both parties sent in additional photographs prior to the hearing, as allowed by further directions. Both parties were self-represented. I was satisfied from the material filed with the Court, considered along with the parties’ submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

Framework for this decision

5. For the Court to make orders under Part 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to…