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 weeds grow in the shaded area. Even if I accept this to be damage to Mr McNally’s property, I find it to be so minor that I would not make any orders on this element of his application.

5. Mr McNally submitted that he lives close to bushland and the trees increase the risk of fire damage to his property. Damage caused by fire is not damage caused directly by trees. This was discussed by Commissioner Fakes at [84]-[86] in Freeman v Dillon [2012] NSWLEC 1057. I don’t find jurisdiction within the Trees Act to make orders on this element of Mr McNally’s application.

Injury

6. Mr McNally submitted that the Serboses’ trees attract possums, which in turn attract ticks. He feels people are more likely to be harmed by ticks because of the trees. He provided no evidence for this. Furthermore, injury caused by insects is not injury caused by trees, so I cannot make orders for that element of his application.

7. Mr McNally submitted that the ground between his house and the trees gets covered in moss due to shading by the trees. He has slipped at least once in this area. As per the principle in Barker v Kyriakides [2007] NSWLEC 292, I find it is reasonable to expect that Mr McNally maintains his property as needed. The trees do not contribute unreasonably in any way that would suggest a diversion here from that principle.

8. As a result of the above, the Part 2 application is refused.

Part 2A application – obstruction of sunlight and views

Sunlight

9. The Serboses’ trees are to the north of the McNally dwelling, so during winter they cast some shade on its north-facing side wall. Any impact during summer is likely to be insignificant. The affected windows are in: upstairs, a disused bedroom and the high windows in a sewing room; and downstairs, the laundry. The sewing room is likely to be used during the day, when sunlight would be appreciated. Sunlight was on the window during this morning’s hearing. I did not find the obstruction to be severe. The laundry window downstairs is heavily shaded by the trees, but as it is a utility room, I would not make orders on this element of the application.

Views

10. From the windows described above, the main view would be into the Serbos dwelling and garden. From the rear deck, the tops of the trees obstruct views of the hills to the north, across the top of the Serbos dwelling. Mr McNally and his family use the deck frequently. I find the view obstruction is severe.

Privacy, smoke and dogs

11. The Serboses wish to maintain the trees at a height that will continue to screen their own windows visually from the McNally dwelling and minimise smoke drifting into their property. They submitted that visual screening minimises the extent to which the applicant’s dog sees them and barks at them. Their upstairs bedroom window faces the McNally dwelling. Pruning the trees to a height of 4.5 metres should restore the northern view from the McNally dwelling while retaining the trees’ positive qualities for the respondents.

12. The trees have been pruned before and will tolerate this pruning. Maintaining them at this height should promote a denser screen for privacy.

Orders

13. As a result of the foregoing, the orders of the Court are:

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.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 25 July 2019