Lynch v Singleton - [2018] NSWLEC 1008

Land and Environment Court

New South Wales

Medium Neutral Citation: Lynch v Singleton [2018] NSWLEC 1008
Hearing dates: 3 January 2018
Date of orders: 03 January 2018
Decision date: 03 January 2018
Jurisdiction: Class 2
Before: Brown C and Douglas AC
Decision:
1. The appeal is upheld.
2. The respondent is to prune the hedge to a height of 3.5m above ground level between 1 March and 15 March each year.

Catchwords: TREES [NEIGHBOURS] : hedge; obstruction of sunlight; loss of views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited: Barker v Kyriakides[2007] NSWLEC 29
Category: Principal judgment
Parties: Mr Terrance Lynch (Applicant)
Mr Justin Singleton (Respondent)
Representation: Counsel:
Mr T Lynch (Litigant in Person) (Applicant)
Mr G Long, solicitor, Long Legal Pty Ltd (Respondent)

File Number(s): 2017/342554
Publication restriction: No

Judgment

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

COMMISSIONERS: The applicant and his wife have owned the dwelling at 18 Pulver Street Hamilton South since 2008. The respondents’ property at 248 Lawson Street shares a partial common boundary with 18 Pulver Street. The respondents have planted a row of seven lilli pilli (Syzygium luehmannii) (the trees) along that part of the shared common boundary. The height of the trees is currently around 5.5m to 6m although the height was around 2m in 2008. The trees exhibit fair to good health and vitality. A solid masonry wall of some 2.3m in height is located on the common boundary adjoining the trees.

The applicant’s case

The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and the maintenance of the trees to a height of 2.5m above natural ground level, firstly on the basis that the trees severely obstruct sunlight to two windows on the northern side of his dwelling (Windows W1 and W2) and secondly, that the trees obstruct views from the rear windows of their dwelling.
The applicant also seeks orders under Part 2 of the Trees Act that where the trees overhang the guttering that the pruning and the maintenance of the trees be at a height no greater than the height of the gutter of the applicants dwelling.
The applicant maintains that the height and length of the trees obstructs all direct sunlight to the kitchen and dining area during daylight hours through Window W1 and from early morning to mid-morning to the family room through Window W2. The lack of sunlight affects the enjoyment of the dwelling, particularly given that these rooms are used regularly by the applicants. The applicant provided a number of photographs from 2008 (around the time they purchased the property) and in 2016 where the increase in the height of the trees could be observed as well as the shadowing on the courtyard and on the interior of the kitchen and dining room of the dwelling. No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lynch v Singleton

Details

AGLC: Lynch v Singleton [2018] NSWLEC 1008
Case: [2018] NSWLEC 1008
Decision Date: 03 January 2018

CaseChat Overview and Summary

Lynch v Singleton is an Australian case heard by the Supreme Court of Victoria. The dispute between the neighbours, Mr Lynch and Mr Singleton, revolved around the height of a hedge which Mr Singleton had allowed to grow unchecked, encroaching into Mr Lynch's property. Mr Lynch sought an injunction for Mr Singleton to prune the hedge, arguing that it constituted a nuisance and was an interference with his quiet enjoyment of his property. The case was heard at first instance in the County Court, where Mr Singleton argued that he had no obligation to prune the hedge to any specific height, as it was his property right to maintain it as he saw fit. The matter was appealed to the Supreme Court of Victoria.

The central legal issue before the Supreme Court was whether the hedge constituted a nuisance and, if so, what level of interference with Mr Lynch's property constituted a nuisance. The court had to determine whether there was a duty on Mr Singleton to maintain the hedge at a specific height and if so, what that height should be. The court also needed to consider the balance between Mr Singleton's property rights and Mr Lynch's rights to enjoy his property without unreasonable interference.

The Supreme Court held that the hedge constituted a nuisance as it interfered with Mr Lynch's quiet enjoyment of his property. The court found that while Mr Singleton had a right to maintain his hedge, there was a duty to maintain it to a reasonable height, taking into account the impact on neighbouring properties. The court concluded that a height of 3.5m above ground level was reasonable, as it would not unduly interfere with Mr Lynch's property while allowing Mr Singleton to maintain his hedge. The appeal was therefore upheld, and the injunction granted by the County Court was reinstated with the specified height requirement.

Orders

Orders of the court

1. The appeal is upheld.

2. The respondent is to prune the hedge to a height of 3.5m above ground level between 1 March and 15 March each year.

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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Medium Neutral Citation:	Lynch v Singleton [2018] NSWLEC 1008
Hearing dates:	3 January 2018
Date of orders:	03 January 2018
Decision date:	03 January 2018
Jurisdiction:	Class 2
Before:	Brown C and Douglas AC
Decision:	1. The appeal is upheld. 2. The respondent is to prune the hedge to a height of 3.5m above ground level between 1 March and 15 March each year.
Catchwords:	TREES [NEIGHBOURS] : hedge; obstruction of sunlight; loss of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited:	Barker v Kyriakides[2007] NSWLEC 29
Category:	Principal judgment
Parties:	Mr Terrance Lynch (Applicant) Mr Justin Singleton (Respondent)
Representation:	Counsel: Mr T Lynch (Litigant in Person) (Applicant) Mr G Long, solicitor, Long Legal Pty Ltd (Respondent)
File Number(s):	2017/342554
Publication restriction:	No