Skender v Ketringham

[2022] NSWLEC 1579

Land and Environment Court

New South Wales

Medium Neutral Citation:

Skender v Ketringham [2022] NSWLEC 1579

Hearing dates:

28 July 2022

Date of orders:

28 July 2022

Decision date:

28 July 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – house orientation causing sunlight obstruction – no jurisdiction covering solar access to gardens

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Clancy v Bell & anor [2011] NSWLEC 1017

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Category:

Principal judgment

Parties:

Ruth Skender (Applicant)
Colin Ketringham (First Respondent)
Leanne Ketringham (Second Respondent)

Representation:

T Skender (Agent) (Applicant)
C Ketringham (Self represented) (Respondents)

File Number(s):

2022/85780

Publication restriction:

Nil

JUDGMENT

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

Background

1. Mrs Skender (the Applicant), has lived at her property at Kanahooka in the Wollongong Local Government Area (LGA) since 1976. The Applicant and Mr and Mrs Ketringham, (the Respondents), share a boundary which runs from roughly south at the front of the Applicant’s land to roughly north at the rear. The Applicant’s west side boundary is the Respondents’ rear boundary.

2. The Applicant claims that the mess falling from the Respondents’ trees started becoming a problem about 7 years ago, and that in particular, four Acmena smithii (Lilly Pilly) (the trees), planted along the southern end of the common boundary, severely block sunlight to three nominated windows (W1 – W3) of her dwelling, and to her front garden.

3. The Applicant says she tried to resolve the dispute by seeking mediation with the Respondents, but they refused the invitation. Further requests for pruning were made by the Applicant, without satisfaction. As a consequence, Mrs Skender submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), seeking the following orders:

1. Remove trees before they damage fence line would be great.

2. Trim trees to 3 metres to allow sunlight in and enable trimming from our side safely.

4. The Respondents planted the trees about 10 years ago for the privacy they provide, to block out light, and for their contribution to garden design. Though Mr Ketringham acknowledged that the trees needed pruning, he does not want the pruning to negatively impact on the benefits provided by the trees’, nor on their health and longevity. The Respondents appreciate the contribution of the trees’ foliage to their sense of privacy.

Onsite hearing

5. The hearing took place onsite, with both parties in attendance. Mr Ketringham represented both himself, and Mrs Ketringham, while Mr Tony Skender represented his mother, as her agent. The ‘Agent’ section on page 5 of the Tree Dispute Application was…