Simpson v Wanasawage
[2017] NSWLEC 1758
•27 July 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Simpson & anor v Wanasawage [2017] NSWLEC 1758 Hearing dates: 27 July 2017 Date of orders: 27 July 2017 Decision date: 27 July 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at (14).
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; cypress; severe obstruction of sunlight; orders for tree pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Peter Simpson (First Applicant)
Ann Simpson (Second Applicant)
Mana Wanasawage (Respondent)Representation: Peter Simpson and Ann Simpson, Litigants in Person (Applicants)
Mana Wanasawage, Litigant in Person (Respondent)
File Number(s): 133695 of 2017
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) provides a means for property owners to seek relief from neighbouring hedges that obstruct sunlight or views. Naturally, trees may also cause other issues, but part 2A specifically limits the Court’s jurisdiction to trees that are on adjoining land, that are planted as a hedge, and that severely obstruct either sunlight to windows of a dwelling or views from a dwelling.
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When Mr and Mrs Simpson moved into their Glen Alpine home in 2000, a hedge of cypress trees grew around all boundaries of a neighbouring property’s large rear garden. Mr Simpson says that, with the owner’s consent, he pruned the neighbouring cypress trees nearest their dwelling, so that the trees were less than two metres above the top of the fence.
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Sometime after Mr Wanasawage bought the neighbouring property in 2004, the Simpsons gained his consent to prune the trees again. They last did so in 2014. Since then they have not been able to reach agreement with Mr Wanasawage and the trees have grown taller. Because their windows no longer receive winter afternoon sun, they have applied to the Court seeking orders for all trees along the common boundary to be pruned to a height of 1.5 m above the top of the boundary fence.
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Mr Wanasawage has pruned the trees recently, but only removed their lower branches. This has done little to change the Simpsons’ circumstances. He also removed one tree that he says was nearly dead.
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The Simpsons produced no shadow diagrams, but provided photographs taken during an afternoon in June 2016 showing shadows on windows of their dwelling. Mr Wanasawage rightly points out that one tree has been removed since then, but he also said he has not trimmed the tops of the trees because that is too difficult. A photograph he provided shows the Simpsons’ northern wall, which faces the common boundary, mostly free of shadow at 1:43 pm, with shadow just beginning to touch the wall’s western end. This photograph is taken in mid-May. He agrees that trees obstruct sunlight to the Simpsons’ windows but says this is only in the late afternoon.
Findings from the onsite hearing
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The onsite hearing allowed a view of the situation. I accept the Simpsons’ contention that windows on their north-facing wall are shaded during winter afternoons. Their living room is at the western end (back of the house) and is first to be shaded by the trees. The west-facing window would be first to be shaded, and would already be shaded in Mr Wanasawage’s May photograph. As Mr Wanasawage pointed out, there is a pergola above this window, but the covering is a clear material. Furthermore, during winter the sun’s low angle would allow light to strike the window directly from the northwest without interference from the pergola. The Simpsons spend most of their time in this living room.
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The trees’ shadows impact the Simpsons’ enjoyment of their living room, during the season when solar access is most appreciated. I find the obstruction is severe.
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Mr Wanasawage argues that pruning the trees to 1.5 metres above fence height may kill them. I accept this is possible. I asked if he proposed alternative orders, but he did not.
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The trees’ contributions to the landscape, and to Mr Wanasawage’s privacy, do not outweigh the benefits that would be provided to the Simpsons by removing the trees.
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Not all trees along the boundary are likely to create a severe obstruction. I estimate the first 12 trees, counting from the end nearest Mr Wanasawage’s dwelling, create the most obstruction.
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Mr Wanasawage submitted that he may prefer to remove the trees, as pruning would leave unsightly trees that might not live long, and would cost more over time.
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I have considered ordering the trees’ removal, but will provide Mr Wanasawage the opportunity to prune them, despite the possible impacts to their appearance and condition. If at any point he wishes to remove the trees, that is a matter for him. Pruning to a height of 2 metres above the top of the boundary fence would sufficiently restore the Simpsons’ access to sunlight, while minimising the burden imposed on Mr Wanasawage.
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The orders below do not include trees in the separate hedge further along the boundary.
Orders
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As a result of the foregoing, the orders of the Court are:
The application is upheld.
Within 60 days of the date of these orders, and then annually within two weeks of the anniversary of the date of these orders, the respondent is to engage a suitably experienced gardener or arborist, with appropriate insurances, to prune the first 12 trees (beginning at the end closest to the respondent’s dwelling) at the eastern end of the hedge along the common boundary shared by the parties, to a height of no more than 2 metres above the top of the adjacent boundary fence.
The works in (2) are to be done in accordance with the NSW Code of practice for the amenity tree industry.
The respondent is to give the applicants at least one week’s notice of the works in (2).
The applicants are to allow any access required to complete the works during reasonable hours.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 06 February 2018
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