McNally v Serbos

[2019] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:	McNally v Serbos [2019] NSWLEC 1354
Hearing dates:	25 July 2019
Date of orders:	25 July 2019
Decision date:	25 July 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1)   The Part 2 application is refused. (2)   The Part 2A application is granted. (3)   During August 2019, and then annually during April from 2020 onwards, the respondents are to prune, or have a suitably experienced contractor prune, all Photinia trees in the hedge along their southern boundary to a height no greater than 4.5 metres, measured from the base of each tree. (4)   Prior to each occasion of the works ordered above, the respondents are to give the applicant seven days’ notice of the works. (5)   On each occasion of the works ordered above, the applicant is to allow any access required for the works during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – damage and injury – obstruction of sunlight and views – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057
Category:	Principal judgment
Parties:	Michael McNally (Applicant) Nick Serbos (First Respondent) Saffron Clare Serbos (nee Armitage) (Second Respondent)
Representation:	M McNally, litigant in person (Applicant) N & S Serbos, litigants in person (Respondents)
File Number(s):	2019/104723
Publication restriction:	No

Judgment

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

Background

1. Michael McNally (‘the applicant’) has applied to the Court pursuant to both s 7 (Part 2) and s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for trees in a neighbouring hedge to be pruned. The Photinia hedge grows on the neighbouring property to his north, owned by Nick and Saffron Serbos (‘the respondents’). Mr McNally wants the trees pruned to a maximum height of 1.8–2.4 metres. The Serboses acknowledge the trees are too tall but do not want to prune them so severely.

2. The hearing took place onsite this morning.

Part 2 application – damage and injury

3. The Photinia trees (‘the trees’) are 5-6 metres tall, forming a hedge that extends for some 30 metres along the Serboses’ side of the common boundary. They are planted closely at one-metre spacings, creating a dense screen to the north of the McNally dwelling, which is set back some two metres from the boundary. The area between the fence and the McNally dwelling slopes down toward the rear of the property with an uneven surface. Before Mr McNally pruned overhanging branches back, he says the Photinia branches were hitting his roof, gutters and wall.

Damage

4. Mr McNally submitted that the Photinia trees have damaged his property. The trees overshadow trees and grass on his property, out-competing them for light. Branches on the northern side of a pin oak and a crab-apple are dying. Grass has died and…