Tigani v Hazelbrook

[2023] NSWLEC 1061

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tigani v Hazelbrook [2023] NSWLEC 1061

Hearing dates:

8 February 2023

Date of orders:

8 February 2023

Decision date:

08 February 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – whether the trees severely obstruct sunlight to a window – sunlight obstruction to courtyard not within Pt 2A jurisdiction – other issues cannot be dealt with under Pt 2A

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, s 4, Pt 2, s 10 Pt 2A, ss 14A, 14B, 14D, 14E

Cases Cited:

Koundouris v Kresner [2022] NSWLEC 1168

Texts Cited:

Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009)

Category:

Principal judgment

Parties:

Pina Tigani (Applicant)
Simon Hazelbrook (First Respondent)
Michelle Hazelbrook (Second Respondent)

Representation:

P Tigani (Self-represented) (Applicant)
S Hazelbrook (Self-represented) (Respondents)

File Number(s):

2022/367545

Publication restriction:

No

Judgment

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

1. COMMISSIONER: Pina Tigani (the Applicant) has 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 removal of trees that form a hedge on neighbouring land belonging to Michelle and Simon Hazelbrook (the Respondents). The hearing took place onsite in Newtown this morning. I have read the material filed with the Court by the parties.

The Applicant made a reasonable effort

2. The Applicant has written to the Respondents outlining her concerns and seeking an outcome. Material filed with the Court shows that the Applicant and the Respondents have had ongoing disputes over several issues for some time. The nature of communications between the parties during the hearing satisfied me, as it must themselves, that they would be unlikely to reach agreement on any of these issues. Given this, I am satisfied that the effort made by the Applicant to reach an agreeable outcome with the Respondents has been reasonable (s 1014E(1)(a) of the Trees Act).

The trees are principally on the Respondents’ land

3. Ms Tigani submitted that the Hazelbrooks have planted the trees on the boundary, so partly on her own land. The location of the boundary relative to the fence is another issue of dispute. From my own observations onsite, I am satisfied that the trees are situated principally on the Respondents’ land (s 4(3) of the Trees Act), so the Applicant has been able to apply for orders pursuant to s 14B.

Do the trees severely obstruct sunlight to a window?

4. The Hazelbrooks have planted an (approximately) 8-metre-long row of Lilly Pillies (Syzygium sp.) along the southern side boundary of their rear courtyard. On or close to this common boundary, along the northern side of the Applicant’s rear courtyard, is a timber paling fence, some 1.8 metres tall. The trees form a hedge that reaches about a metre above the fence. Accordingly, Pt 2A of the Trees Act applies to these trees (s 14A).

5. The Court’s power to make orders under Pt 2A of the Trees Act is limited at s 14E(2):

14E Matters of which Court must be satisfied before making an order

(1) …

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, and

(b) the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

6. Similarly, the Court’s jurisdiction to make orders under this part is limited at s 14D:

14D Jurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:

(a) sunlight to a window of a dwelling situated on the applicant’s land, or

(b) any view from a dwelling situated on the applicant’s land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

7. At the time she applied to the Court, Ms Tigani’s dwelling had no windows at the rear of her dwelling facing her courtyard. Her application concerned an obstruction of sunlight to her courtyard. Both ss 14E(2) and 14D of the Trees Act make it clear the Court has no jurisdiction over sunlight obstruction to that part of her property. By the time of this morning’s onsite hearing, Ms Tigani’s renovations were nearing completion. A large window is now in the west-facing wall on the ground floor, facing her courtyard and close to the eastern end of the hedge. Although her submissions remained focussed on sunlight access for her courtyard, she said the trees will now obstruct sunlight to this window.

8. To be precise, the window faces slightly north of west. Ms Tigani provided no shadow analysis, so if am to assess the obstruction to this window I rely on my own experience. I find that in summer, the trees’ shade would not fall onto the window at any time of day. In winter, the tree’s shade will fall onto the window during some hours of the afternoon. Shade from the fence itself might also fall onto the window then. I am not satisfied that the obstruction caused by the trees would be severe.

9. Furthermore, the trees were at this height at the time of Ms Tigani’s renovation. She has not lost sunlight to a window where she once enjoyed it. The Department of Justice and Attorney General’s ‘Review of the Trees (Disputes Between Neighbours) Act 2006’ (November 2009) showed the intention for the Pt 2A jurisdiction to be limited to cases where the obstruction of (in this case) sunlight to a window has developed during an applicant’s ownership: see Koundouris v Kresner [2022] NSWLEC 1168 at [47]-[51].

10. For the reasons above, the Court cannot make orders in these proceedings and the application will be refused.

11. Should Ms Tigani remain concerned that parts of the trees that overhang or encroach onto her land will damage her property, she may apply to the Court under Pt 2 of the Trees Act. Under Pt 2A, the Court has no jurisdiction to deal with those issues.

Orders

12. Based on the foregoing, the Court orders:

1. The application is refused.

2. The exhibits are returned, other than A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 09 February 2023