Ruser v Johnson

[2021] NSWLEC 1545

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ruser v Johnson [2021] NSWLEC 1545

Hearing dates:

16 September 2021

Date of orders:

16 September 2021

Decision date:

16 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [17]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – lilly pilly – obstruction of sunlight – whether the obstruction is severe – privacy – orders for pruning and maintaining trees in the hedge

Legislation Cited:

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

Cases Cited:

Butler v Taylor [2016] NSWLEC 1427

Lutze v Graham [2012] NSWLEC 1075

Category:

Principal judgment

Parties:

Bernd Ruser (First Applicant)
Kathleen Ruser (Second Applicant)
Simon Francis Johnson (First Respondent)
Louise Michelle Johnson (Second Respondent)

Representation:

B Ruser (Litigant in Person) (Applicants)
S Johnson (Litigant in Person) (Respondents)

File Number(s):

2021/159197

Publication restriction:

No

Judgment

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

Background to the application

1. COMMISSIONER: Bernd and Kathleen Ruser (‘the applicants’) live at their double-storey Riverview dwelling. The main living room on their lower level is only a metre or so from their northern boundary. The Rusers’ neighbours, Simon and Louise Johnson (‘the respondents’), planted a lilly pilly hedge (‘the trees’) along their southern boundary, being the common boundary shared with the applicants. The Rusers complained that the trees obstruct sunlight to their living room windows. After the Johnsons refused the Rusers’ request to prune the trees, the Rusers 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 trees to be maintained at a height of 2.5 metres.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicants’ dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicants’ interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F in this matter include privacy, amenity, and the response of the trees to pruning.

3. If orders are made, they might be those sought by the applicants, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent (in this matter) a severe obstruction of sunlight to windows of the applicants’ dwelling.

The hearing

4. The hearing took place online via audio-visual means. I informed the parties that the Court would arrange a later…