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…