McCrossin v Carter

[2023] NSWLEC 1500

Land and Environment Court

New South Wales

Medium Neutral Citation:

McCrossin v Carter [2023] NSWLEC 1500

Hearing dates:

15 May 2023

Date of orders:

05 September 2023

Decision date:

05 September 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [59].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees pruned before hearing – was sunlight available upon occupation – consideration of privacy

Legislation Cited:

Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006

Pt 2A, ss 6, 12,14A, 14B, 14C, 14E, 14F

Trees (Disputes Between Neighbours) Regulation 2007

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Steber v Job [2019] NSWLEC 1308

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

AS4373:2007 Pruning of amenity trees

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 

Category:

Principal judgment

Parties:

Scott McCrossin (Applicant)
Anthony Francis Carter (First Respondent)
Joanne Therese Collins (Second Respondent)

Representation:

S McCrossin (Self represented) (Applicant)
A Carter (Self represented) (Respondents)

File Number(s):

2023/80275

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Scott McCrossin, the applicant, and the respondents, Anthony Carter and Joanne Collins, share a boundary between their properties in Bondi that extends from north-east at the front of the applicant’s dwelling to south-west at the rear. The parties’ dwellings are located in perpendicular streets, and the applicant’s long north-western side boundary is the rear boundary of the respondents, and three of the respondents’ side neighbours.

2. Access to Mr McCrossin’s dwelling, which he occupied in December 2011, is via an 1100 mm wide path between the applicant’s 3-storey brick side wall and the common boundary fence. The fence is a 2.4 m tall solid screen, topped with a timber lattice about 900 mm tall. Most windows in the applicant’s ground floor rooms source natural light only from the north-western side, where sunlight is obstructed by the fence and lattice as well as the respondents’ trees. The applicant’s main living area at the northern end of the dwelling’s upper level was, however, bathed in natural light.

3. Three Magnolia grandiflora (Evergreen Magnolia) had been planted along the common boundary before 2008, and at some time later, Bambusa textilis var. Gracilis (Slender Weavers Bamboo) was interplanted with them. The applicant claimed that the Evergreen Magnolia trees had since grown to about 9 m and the Bamboo to about 12 m, and that they severely blocked sunlight to windows of his dwelling. He also claimed that sunlight was obstructed by the “unapproved” timber lattice, above the boundary fence.

4. After discussing pruning of the trees with Mr Carter in November 2022, the applicant claimed he received no response to two contact attempts with Mr Carter in early 2023, nor any pruning of the trees.

5. Consequently, Mr McCrossin submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), which proposed the following (summarised) orders:

“1. Prune bamboo hedge at the rear…