Hanna v Hampton

[2023] NSWLEC 1752

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hanna v Hampton [2023] NSWLEC 1752

Hearing dates:

21 November 2023

Date of orders:

21 November 2023

Decision date:

21 November 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [21].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage and injury – debris – Pt 2A application – lilly pilly hedge – obstruction of sunlight – whether the obstruction is severe – privacy – who should prune the applicant’s side of the hedge

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 10, 14B, 14E, 14F

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462

Category:

Principal judgment

Parties:

Peter Hanna (Applicant)
Leon Hampton (First Respondent)
Alana Hampton (Second Respondent)

Representation:

Counsel:
P Hanna (Self-represented) (Applicant)
F Russell-Matthews (Solicitor) (Respondents)

Solicitors:
Equifax Australasia Group Services Pty Limited (Respondents)

File Number(s):

2023/291628

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Peter Hanna (the applicant) has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders relating to trees on a neighbouring Ropes Crossing property belonging to Alana and Leon Hampton (the respondents).

2. A row of 21 lilly pillies (Syzygium sp.) (the trees) grows on the Hamptons’ property along the common boundary shared with Mr Hanna. Pursuant to s 7 of the Trees Act, Mr Hanna seeks to prevent damage to his property and to prevent injury. Pursuant to s 14B of the Trees Act, he seeks to remedy the sunlight obstruction caused by the trees.

3. The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant’s property to inspect the trees’ impacts on sunlight. Privacy issues were observed at both properties.

Reasonable effort to reach agreement

4. Both Pt 2 (at s 10(1)(a)) and Pt 2A (at s 14E(1)(a)) of the Trees Act require the applicant to make a reasonable effort to reach agreement with the respondents. The applicant and respondents have a history of disputes over other matters as well as the trees, as shown by material filed with the Court. They have discussed the trees, even if the nature of such discussions was hostile. The applicant’s wife requested mediation, which the respondents refused for reasons explained in Ms Hampton’s affidavit. Given the nature of the relationship between the applicant and the respondents, and the improbability of them agreeing on an outcome, I am satisfied that the applicant made a reasonable effort.

The Pt 2 application

5. Before making orders under Pt 2 of the Trees Act, the Court must be satisfied, at s 10(2), that the trees have caused, are causing, or are likely in the near future to…