McPherson v Alper

[2024] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation:

McPherson v Alper [2024] NSWLEC 1258

Hearing dates:

14 February 2024

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove trees 1–12 as identified in the application (‘the tree works’). The tree works are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.

(3) Should the respondent replant a hedge along the length of the boundary where the trees are removed, the hedge must be of a species that reaches no more than 3 metres at maturity.

(4) The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – cypress hedge – obstruction of sunlight and views – whether the obstruction is severe – privacy – whether the trees should be pruned or removed

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140

Texts Cited:

Australian Standard, AS4373-2007 Pruning of amenity trees, 2007

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Murray John McPherson (Applicant)
Emre Alper (Respondent)

Representation:

Counsel:
M McMahon (Solicitor) (Applicant)
E Alper (Self-represented) (Respondent)

Solicitors:
M E McMahon and Associates (Applicant)

File Number(s):

2023/438223

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Bundeena neighbours Murray McPherson (the applicant) and Emre Alper (the respondent) share a common boundary, being the side boundary of each property. Mr Alper’s single-storey dwelling is downslope and to the east of Mr McPherson’s two-storey dwelling. On Mr Alper’s property, along the entire length of his western boundary, a row of cypress trees creates a screen some 8 metres tall between the two dwellings. The trees were planted in two sections: 12 trees in a row from the front of Mr Alper’s property and another 13 trees continuing southward along the boundary. Mr McPherson found the 12 northern trees (‘the hedge’, or ‘the trees’) grew to obstruct sunlight to, and views from, his dwelling. He applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the 12 trees forming the hedge to be removed or, failing that, for them to be maintained at the height of the dividing fence along the common boundary. Mr Alper refutes that the trees cause the obstructions claimed by Mr McPherson.

2. The hearing took place onsite, allowing the Court to inspect the trees…