Johnston v Arndell

[2011] NSWLEC 1212

Land and Environment Court

New South Wales

Medium Neutral Citation:	Johnston v Arndell [2011] NSWLEC 1212
Hearing dates:	20 July 2011
Decision date:	20 July 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Potential injury to persons; Hedge - obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	McLaren v Lewis [2011] NSWLEC 1170 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Mr H A Johnston (Applicant) Ms S Arndell (Respondent)
Representation:	Applicant: Mr Johnston (Litigant in person) Respondent: Ms Arndell (Litigant in person)
File Number(s):	20284 of 2011

Judgment

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

1. COMMISSIONER: This is an application pursuant to both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Dudley against the owner of trees growing on an adjoining property.

1. With respect to Part 2, the applicant is seeking orders for the pruning of all overhanging parts of the trees back to the fence line in order to prevent injury; specifically, to prevent palm fronds from injuring his grandchildren's eyes.

1. The order sought pursuant to Part 2A is the pruning of the trees to a height of 2.5 m to remedy, what the applicant contends, is a severe obstruction of sunlight to a number of windows of his dwelling.

1. The applicant lists 5 trees in the application. The trees, with the exception of tree 5, are palms. The identification of the trees and the number of stems were verified on site; the actual details differed somewhat from the application.

1. Tree 1 is a Golden Cane Palm, a clumping species with multiple stems. The specimen in question has many stems of varying heights, however, the applicant has nominated the 8 tallest stems. Tree 2 is a clump of 4 closely planted single-stemmed palms; tree 3 is a pair of single stemmed palms, as is tree 4. The single stemmed palms are probably Bangalow Palms. Tree 5 is an unidentified shrub.

1. The trees were planted by the previous owners of the respondent's property. They are growing in a garden bed along the southern side boundary of the respondent's property close to the dividing fence between the parties' properties.

1. The applicant's two-storey dwelling is to the south and upslope of the applicant's property. The upper level is the main living area; the downstairs section is described as a rumpus/work room that is used, in part, as a childcare centre.

Part 2

1. Dealing first with the application pursuant to s 7, Part 2. The applicant claims that should fronds from trees 2 and 3 project through the balustrades of the deck on the northern side of the upper level that adjoins the main living area, they could injure the eyes of his grandchildren. He is also concerned, that should the children lean over the balustrade, their eyes may be damaged, especially…