Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Hourigan v Howard [2018] NSWLEC 1686 Hearing dates: 21 December 2018 Date of orders: 28 December 2018 Decision date: 21 December 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of sunlight not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Morgan Hourigan (First Applicant)
Christine Hourigan (Second Applicant)
Jake Howard (First Respondent)
Stacey Howard (Second Respondent)Representation: M & C Hourigan, litigants in person (Applicants)
J Howard, litigant in person (Respondents)
File Number(s): 317351 of 2018
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Two neighbouring dwellings in suburban Como, in Sydney’s south, are separated by a few metres. From the lower land on the property of Jake and Stacey Howard (‘the respondents’) the fence along the common boundary is 1.8 metres tall. From the higher land on the neighbouring property of Morgan and Christine Hourigan (‘the applicants’) the same fence is approximately 1.5 metres tall.
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To maintain some privacy along this side of their property the Howards firstly planted a hedge of photinia, later adding some bamboo in pots. They have regularly maintained the plants to a height of 2.5—2.8 metres.
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The Hourigans claim the plants are blocking sunlight to their windows. They have applied to the Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the Howards to prune and then maintain the plants at fence height.
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The hearing took place onsite. The Howards have moved the bamboo, which grows in pots, away from the boundary. It does not obstruct sunlight to the Hourigans’ property.
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The photinia trees grow in a hedge in a garden bed next to the boundary. The Hourigans are concerned about only the two plants closest to their living room window. The plants are around 2.5 metres tall, with some new shoots slightly more than 2.5 metres above ground level. Part 2A of the Trees Act therefore applies to these trees.
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The trees are almost 2 metres from the north-facing window of the Hourigan’s living room. The tops of the trees are 50—60 cm below the top of the window. The window extends down to the floor. During winter months the trees may partially obstruct sunlight to the lower section of the window, although the fence and more distant trees would also partially obstruct this sunlight. It appears that during the remainder of the year the trees would not obstruct sunlight to this window. There is no obstruction now, in mid-summer. The Hourigans have provided no photos or shadow diagrams showing anything to the contrary.
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The Hourigans say the trees were taller when they made their application to the Court, after which the trees were pruned. The Howards’ photographs, and the Hourigans’ own statements, indicate they were no more than 2.8 metres tall. It appears that the Howards maintain the hedge within this height range.
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I find that the obstruction of sunlight to the Hourigan’s living room window is not severe. Therefore, the Court cannot make any orders for interfering with these trees.
Decision
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As a result of the foregoing, the application is dismissed.
____________________________
D Galwey
Acting Commissioner of the Court
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Amendments
28 December 2018 - Corrected: class 2
- AGLC
- Hourigan v Howard [2018] NSWLEC 1686
- Case
- [2018] NSWLEC 1686
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court was whether the comments made by the respondent amounted to contempt of court, and if so, whether the punishment of imprisonment was an appropriate response. The court considered the relevant principles of contempt law, including the distinction between scandalising contempt and obstructive contempt, and the need for a balance between protecting the administration of justice and preserving freedom of speech. The court also examined the specific circumstances of the case, including the content and context of the comments made by the respondent.
The court found that the comments made by the respondent did not amount to contempt of court. The comments were made outside of the court and did not interfere with the administration of justice. The court also found that the punishment of imprisonment was not appropriate in this case. The court emphasised the importance of freedom of speech and the need to balance this with the protection of the administration of justice. The court held that the applicant had not satisfied the threshold for committing the respondent for contempt of court.
As a result of the court's decision, the application was dismissed. The respondent was not committed to prison for contempt of court. The court's decision highlights the importance of striking a balance between protecting the administration of justice and preserving freedom of speech, and the need for careful consideration of the specific circumstances of each case when determining whether contempt has occurred.
Orders
Orders of the court
The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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