Feng v Catsanos

[2024] NSWLEC 1712

Land and Environment Court

New South Wales

Medium Neutral Citation:

Feng v Catsanos [2024] NSWLEC 1712

Hearing dates:

18 October 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E

Cases Cited:

Drewett v Best [2010] NSWLEC 1305

Texts Cited:

Canterbury-Bankstown Development Control Plan 2023

Category:

Principal judgment

Parties:

Chongchun Feng (Applicant)
Merrelyn Ann Catsanos (Respondent)

Representation:

Counsel:
C Feng (Self-represented) (Applicant)
R Size (Respondent)

Solicitors:
Speiser Lawyers (Respondent)

File Number(s):

2024/286331

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Chongchun Feng (the applicant) has applied to the Court pursuant to s 14B in Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for trees in a neighbouring hedge to be pruned or removed to remedy an obstruction of sunlight. Merrelyn Catsanos (the respondent) values the privacy provided by her trees and disputes that the trees cause a severe sunlight obstruction.

The hearing and evidence

2. The hearing took place onsite, allowing the Court to inspect the trees, both properties and all relevant issues. Ms Feng was self-represented, while Mr Size, of Counsel, represented Ms Catsanos. No shadow diagrams or other expert evidence were tendered.

The trees

3. On Ms Catsanos’ property, five lilly pillies (Syzygium sp.) are planted in a line close to the common boundary shared with Ms Feng’s property. The trees are approximately 4 metres tall. They are planted at regular spacings. They form a screen along her rear boundary. Mr Size suggested that the trees might not form a hedge as they are not planted sufficiently close to each other. However, I observed that they are planted close enough to each other to form a continuous screen along the boundary. In her own statement (Exhibit 1), Ms Catsanos stated that she planted the trees in 2010 after the development on the applicant’s land left her with a substantial loss of privacy. She planted the trees to from a screen. Lilly pillies are commonly used for hedges. They were planted to form a hedge and, on my observation, they form a hedge in the present. They are trees to which Pt 2A of the Trees Act applies (s 14A).

Orders the applicant seeks

4. Ms Feng applied for orders to remedy, restrain and prevent a severe obstruction of sunlight to windows at the back of a dwelling on her land. She seeks orders for Ms Catsanos to remove the trees, or alternatively to prune and maintain the trees below window height and to prevent the trees overhanging her boundary. These are orders the Court…