Lord v Grech; Brooke v Grech

[2015] NSWLEC 1190

Land and Environment Court

New South Wales

Case Name:	Lord v Grech; Brooke v Grech
Medium Neutral Citation:	[2015] NSWLEC 1190
Hearing Date(s):	27 May 2015
Date of Orders:	27 May 2015
Decision Date:	27 May 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	Both applications are upheld. See orders at (15).
Catchwords:	Trees (Disputes Between Neighbours); hedge; severe obstruction of sunlight; application upheld; pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Kathleen Lord (Applicant, 20177 of 2015) Rip Brooke (Applicant, 20178 of 2015) Paul Grech (Respondent, both matters
Representation:	Stephen Lincoln, agent (Applicants, both matters) Paul Grech, litigant in person (Respondent, both matters)
File Number(s):	20177 of 2015; 20178 of 2015

JUDGMENT

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

Background

1. When Mr Grech purchased his Richmond property several years ago, a row of Leyland Cypress trees had just been planted in the rear garden, about one metre away from the rear boundary. To the south of that boundary are lowset brick dwellings: one owned and occupied by Ms Lord, the other by Mr Brooke. Over the last few years both Ms Lord and Mr Brooke have seen the Cypress trees grow taller, until they both now say that north-facing windows of their dwellings receive no sunlight for much of the day in winter. They have each filed an application with the Land and Environment Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), seeking orders for Mr Grech to cut and maintain the hedge at a height that would restore direct sunlight to their windows.

2. The two applications are separate but apply to trees in the one hedge, so they have been heard concurrently and will be dealt with together in this single judgment.

Framework

1. In each matter, the Court cannot make orders under Part 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of sunlight to windows of the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.

Onsite hearing: observations and submissions

1. The hearing took place onsite. I bring my own arboricultural expertise to the matter, in particular regarding the growth habit of this species.

2. Fourteen trees form a hedge near the boundary, 13 in a straight row and one slightly offset from the line at its eastern end. They are planted at close and regular spacings so as to form a hedge. Their foliage creates a dense green wall that cannot be seen through. They are 6—7 metres tall.

3. Mr Grech values the trees for their privacy and for their contribution to the garden. He says he does not want the trees to appear pruned and hedge-like, but would prefer them to continue developing their natural form. He says he is willing to prune branches overhanging the boundary, as he can do this himself, although he did not explain how he will do this when the trees grow much taller, which they inevitably will. They are healthy trees that are growing vigorously and, without interference are soon likely to be more than 10 metres tall.

4. There is no window on the southern side of the upper level of Mr Grech’s shed. Dwellings of both applicants and the respondent are single-storey. If foliage is above eye height for a person standing on the ground, privacy for all parties will be maintained.

5. Each applicant has two bedrooms facing north; and one of these bedrooms at each dwelling has a sliding glass door only a few metres from the northern boundary, with the wall of foliage growing up from and encroaching over this boundary. At 10:30 this morning, in late May, the trees are causing a complete obstruction of sunlight to the entire area of glass in the bedroom doors on each property. Mr Brooke submits that due to his age he uses his bedroom during the day.

6. The applicants’ agent has in the past communicated their concerns to Mr Grech, requesting that the trees be pruned, and Mr Grech responded that he would not be pruning the trees.

Conclusions

1. The Cypress trees’ foliage forms a wall-like screen that already causes a severe obstruction to the applicants’ windows. Without interference, the impact will increase as the trees continue to grow quickly and will shade other windows for longer periods of the day. The hedge denies the applicants of reasonable amenity. Their request is entirely reasonable and outweighs any reason the respondent may have for not pruning the trees. This is a species that is principally planted and grown for hedging, which then requires regular pruning. The respondent’s aim of letting the trees grow to their full size, this close to the applicants’ windows, ignores the negative impacts this would have on his neighbours.

2. Orders will therefore be made for pruning as sought by the applicants. The trees are still relatively young and should respond positively to pruning.

3. Regular pruning will be ordered to maintain the trees at the lower height. This is to be done just before winter to allow maximum access to sunlight when it is needed most.

4. Debris will fall onto the applicants’ properties during works, and access may be required to carry out the pruning efficiently, so orders for access will be made.

5. While those trees directly to the north of each dwelling affect that dwelling the most, all trees in the hedge have the potential to contribute to sunlight obstruction at each property at different times of the day. Therefore the following orders apply in their entirety to each matter.

Orders

1. The orders of the Court for each matter are:

   (1)   The application is upheld.

   (2)   The respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurance: to prune all 14 trees in the hedge to a height of 300 mm above the top of the adjacent fence along the common boundary; to prune all branches and foliage that overhang the common boundary back to the boundary line; and to remove any resulting debris from the applicant's property.

   (3)   The works are to be done in accordance with WorkCover NSW Code of Practice for the Amenity Tree Industry.

   (4)   The works are generally to conform to the guidelines of AS4373 Pruning of Amenity Trees other than those sections that would prevent the pruning being ordered above.

   (5)   The works in order (2) are to be completed within 60 days of the date of these orders.

   (6)   On reasonable notice the applicant is to provide any access required for the works in order (2) during reasonable hours of the day.

   (7)   Every year during April, beginning 2016, the respondent is to engage and pay for a suitably qualified arborist to carry out the works in order (2) in accordance with orders (3) and (4).

   (8)   On reasonable notice each year the applicant is to provide any access required for the works in order (7) during reasonable hours of the day.

   ____________________________

   D Galwey

   Acting Commissioner of the Court

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