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 can make if relevant jurisdictional tests are met (s 14D).

Ms Feng made a reasonable effort to reach agreement

5. Correspondence between the parties (in Exhibit E) shows that Ms Feng communicated extensively with Ms Catsanos’ daughter, Melissa, trying to reach an outcome. I am satisfied that Ms Feng made a reasonable effort to reach agreement and that the timeframe for the hearing allowed her to give the required notice of the application (14E(1)).

Do the trees cause a severe obstruction of sunlight?

6. Ms Feng claims that the trees severely obstruct sunlight to three windows of her dwelling: W1 and W2 are windows to living areas and W3 is a window to a bedroom. The windows are at the rear of her dwelling, which faces northwest. The trees are to the north of the windows, approximately 3 metres from W3 but further from W1 and W2, which are set back behind a porch. The porch is covered by a roof. The height of the trees at the time of the hearing was roughly equivalent to the top of W3.

7. At s 14E(2)(a)(i) of the Trees Act, the Court cannot make an order unless satisfied that the trees are severely obstructing sunlight to a window of the applicant’s dwelling. The Court considers ‘sunlight’ in the Trees Act to mean direct sunlight: Drewett v Best [2010] NSWLEC 1305 at [17].

8. Evidence from the parties includes photographs but no shadow diagrams. I rely on the photos as well as common knowledge of the sun’s movements throughout the day and during different seasons.

9. The trees could not severely obstruct sunlight to the windows during summer. They would obstruct some sunlight to the windows in winter. Photos provided by both Ms Feng and Ms Catsanos show W3 to be in full sunlight and W1 and W2 mostly in shade from the roof over Ms Feng’s porch. Shadow from the trees is only on the lowest parts of the windows, which I do not consider to be a severe obstruction. These photos were taken in July and August, close to the winter solstice, when the trees’ impact to sunlight would be greatest.

10. I am not satisfied that the trees cause a severe obstruction of sunlight to Ms Feng’s windows, so no orders can be made to interfere with the trees (s 10(2)(a) of the Trees Act).

Other issues

11. Ms Feng explained other issues she has with the trees. The trees overhang her garden and drop debris that must be cleaned up. White wax scale infests the trees, creating further mess. Ms Feng is able to take some action herself to deal with these issues. Pursuant to Chapter 2.3 of the Canterbury-Bankstown Development Control Plan 2023 (the DCP), a permit for tree works is not required for trees that are less than 5 metres in height. If trees are 5 metres or taller, a permit is not required for selective pruning of up to a total of 10% (indigenous species) or 20% (exotic species) of the crown over a 12-month period. The common law right of abatement allows Ms Feng to prune branches on her side of the boundary within the restrictions of the DCP. Likewise, Ms Feng may treat any white wax scale on her side of the boundary. Should she find that the trees grow taller, causing greater sunlight obstruction, Ms Feng can ask Ms Catsanos to reduce their height again. Ms Catsanos has shown in the past that she is willing to undertake reasonable pruning for Ms Feng’s benefit.

Orders

12. The Court orders:

1. The application is refused.

2. The exhibits are returned other than exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 05 November 2024